# Fletcher v. Louisiana Department of Transportation & Development

> District Court, M.D. Louisiana · November 10, 2020

URL: https://www.frixlaw.com/law-library/cases/10191606

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** November 10, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CURTIS A. FLETCHER CIVIL ACTION
VERSUS
LOUISIANA DEPARTMENT OF NO. 19-00593-BAJ-RLB
TRANSPORATION AND
DEVELOPMENT
RULING AND ORDER
Before the Court is the Defendant’s Motion for Judgment on the
Pleadings (Doc. 6). The Motion is Opposed (Doe. 13).
Plaintiff, Curtis Fletcher, seeks damages and declaratory and injunctive relief
under Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101
et seq., which prohibits discrimination against a qualified individual with a disability
because of the disability of such individual in any of the “terms, conditions [or]
privileges of employment,” 42 U.S.C. § 12112(a). (Doc. 1-1). Plaintiff alleges that his
employer, the Louisiana Department of Transportation and Development (DOTD),
violated the ADA by failing to provide him with the reasonable accommodation of
using his annual accrued leave in lieu of sick leave until he was cleared for work;
failing to engage in an interactive process to identify and determine alternative
reasonable accommodations!, and terminating his employment because of his

1“Under the ADA, once the employee presents a request for an accommodation, the employer
is required to engage in [an] interactive process so that together they can determine what
reasonable accommodations might be available.” £.#.0.C. v. LHC Group, Inc., 778 F.3d 688,
700 (5th Cir, 2014) (quoting £.E.O.C. vu. Chevron Phillips Chemical Co. LP, 570 F.3d 606, 622

disability. Jd. at 4.
Defendant moves for Judgment on the Pleadings under Federal Rule of Civil
Procedure 12(c) on the basis of sovereign immunity or, in the alternative, that
Plaintiff has not established that he is a “qualified individual with a disability” within
the meaning of the ADA.
For the reasons discussed below, the Motion is granted.
I, Background
A. Plaintiff's Allegations
Plaintiff began his employment with the DOTD on July 9, 1990 as an engineer.
(Doe. 1-1 at { 8). His employment continued until his termination on October 9, 2014.
fd, Plaintiff contends that, at all relevant times, he “was an ‘individual with a
disability’ within the meaning of 42 U.S.C. § 12102, as he suffers from hypertension
and resulting dizziness, which have, at times, rendered him unable to work or drive.”
Id. at § 10.
While employed for the Defendant, Plaintiffs condition worsened “such that
he became temporarily unable to work.” fd. at 4 11. As a result, Plaintiff requested,
and was approved for, leave under the Family and Medical Leave Act of 1993 (FLMA),
29 U.S.C. § 2601 et seq. Id. His leave began on May 7, 2014 and terminated on
August 6, 2014. (Doc. 2 at 711). During this period of leave, Plaintiff sought
treatment from various medical professionals. Plaintiffs “blood pressure continued

(6th Cir. 2009). “[W]hen an employer’s unwillingness to engage in a good faith interactive
process leads to a failure to reasonably accommodate an employee, the employer violates the
ADA.” Cutrera v. Board of Sup’rs of Louisiana State University, 429 F.8d 108, 112 (5th Cir.
2005).

to fluctuate and his dizziness progressed to the point where [he] was temporarily
unable to drive.” fd.
On August 6, 2014, Plaintiff received an email from Defendant, stating
“G) [Plaintiffs] FMLA leave had expired; (ii) [Plaintiffs] second request for leave was
being denied, as such requests are limited to one per year; and (iii) [Plaintiffs]
continued leave would be considered sick leave as opposed to FMLA leave.”
(Doc. 1-1 at { 18). Plaintiff then utilized his accrued sick leave “to the fullest extent
allowed by DOTD policy.” (Doc. 6-1 at p. 3).
On September 18, 2014, Defendant “issued a Pre-Deprivation Notice of Non-
Disciplinary Removal’ to Plaintiff, which claimed that “[Plaintiffs] disability
together with his exhaustion of sick leave required his termination under applicable
Civil Service Rules.” (Doc. 1-1 at 14, Doc. 2 at § 14). Four days later, Plaintiff
updated Defendant on his condition by email and requested “the reasonable
accommodation” of using his accrued annual leave to take time to recover until he
was cleared for work by a physician. (Doc. 1-1 at 15). This request was denied,
“without engaging in any interactive process”, (Doc. 1-1 at § 17), and Plaintiff was
terminated on October 14, 2014. (Doe. 1-1 at { 18).
B. Procedural History
Plaintiff filed suit in Louisiana state court, alleging that the following acts or
omissions violated the ADA:
1. Defendant's failure to provide the reasonable accommodation of
permitting Plaintiff to use his annual accrued leave in lieu of sick leave
until his physician cleared him to work;

2. Defendant’s failure to engage in an interactive process to identify and
determine alternative reasonable accommodations; and
3. Defendant’s termination of Plaintiff due to his disability.
(Doc. 1-1 at 21, Doc 6-1 at p. 4).
Defendant timely removed the action to this Court based on federal question
jurisdiction under 28 U.S.C. § 1331. Defendant subsequently filed this Motion for
Judgment on the Pleadings under Rule 12(c).
H. Discussion
A, Standards
Rule 12(c) provides that, after the pleadings are closed but early enough not to
delay trial, a party may move for judgment on the pleadings. Fed. R. Civ. P. 12(c). A
Rule 12(c) motion is “designed to dispose of cases where the material facts are not in
dispute and a judgment on the merits can be rendered by looking to the substance of
the pleadings and any judicially noticed facts.” Hebert Abstract Co. v. Touchstone
Props., Lid., 914 F.2d 74, 76 (6th Cir, 1990) (per curiam).
The standard for dismissal under Rule 12(c) is the same as that for dismissal
for failure to state a claim under Rule 12(b)(6). Johnson v. Johnson, 385 F.3d 503, 529
(5th Cir. 2004) (citing Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,
313 F.8d 305, 313 Gth Cir. 2002)). A Rule 12(b)(6) motion to dismiss tests the
sufficiency of the complaint against the legal standard set forth in Rule 8, which
requires “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must.
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell □□□
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for relief [is]...a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Jd. at 679. “[F]acial plausibility” exists “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is hable for the misconduct alleged.” Id. at 678 (citing Twombly,
550 U.S. at 556). Hence, the complaint need not set out “detailed factual allegations,”
but something “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action” is required. Twombly, 550 U.S. at 555. When conducting
its inquiry, the Court must “accept|] all well-pleaded facts as true and view[] those
facts in the ght most favorable to the plaintiff.” Bustos v. Martini Club Inc.,
599 F.3d 458, 461 (6th Cir. 2010) (quotation marks omitted).
B. Sovereign Immunity
The Eleventh Amendment to the Constitution of the United States bars a state
from being sued in federal court by its own citizens, citizens of other states, or foreign
nations. U.S. Const. Amend. XI; Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996):
Cox v. City of Dallas, 256 F.3d 281, 307 (Sth Cir. 2001) (citing Bd. of Trs, Of Univ. of
Ala. v. Garrett, 5381 U.S. 356 (2001)). “When a state agency is named the defendant,
the Eleventh Amendment bars suits for both money damages and injunctive relief
unless the state has waived its immunity.” Cozzo v. Tangipahoa Parish Council--
President Government, 279 F.8d 278, 281 (Sth Cir, 2002), The DOTD is an arm of the
state for purposes of the Eleventh Amendment. See Robertson v. Louisiana, No. CV

17-00138-BAJ-EWD, 2018 WL 1077308, at *4 (M.D. La. Feb. 26, 2018) (finding
“DOTD is an arm of the State of Louisiana and is thus entitled to Eleventh
Amendment immunity”); Lambert v. Kenner City, No. Civ. 04-2192, 2005 WL 533807
La. Jan. 5, 2005) (same).
There are two ways to circumvent sovereign immunity: abrogation and waiver.
The Supreme Court in Garrett held that Congress did not validly abrogate states’
immunity from suits from money damages by passing Title I of the ADA. Garrett,
521 U.S. at 374. The Court noted that it did not foreclose all federal remedies under
Title I of the ADA. “Title I... still prescribes standards applicable to the States.
Those standards can be enforced by the United States in actions for money damages,
as well as by private individuals in actions for injunctive relief under Ex parte Young,
209 U.S. 123, 28 $.Ct. 441, 52 L.Ed. 714 (1908).” Plaintiff has not sued any state
officer in their official capacity. Thus, to succeed on his claims Plaintiff must show
that the Defendant waived its immunity. The Court will generally find waiver if “the
state voluntarily invokes its jurisdiction ... or if the state makes a ‘clear declaration’
that it intends to submit itself to the court’s jurisdiction.” AT&T Communications v.
BellSouth Telecommunications Inc., 238 F.3d 636, 643-44 (th Cir. 2001) (citations
omitted),
The Fifth Circuit has recognized that “state sovereign immunity consists of two
separate and different kinds of immunity, immunity from suit and immunity from
liability.” Myers, ex rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir. 2005). These two
kinds of immunity can be relinquished or retained independent of each other.

Id. at 254. When a state removes a case to Federal court, it waives sovereign
immunity from suit. fd. at 255 (citing Lapides v. Bd. of Regents, 5385 U.S. 618 (2002)).
However, whether the state retains a separate immunity from liability is an open
question, based on the law of each state. Id.
Defendants argue that Louisiana has not waived its immunity for Title I of the
ADA. They point to several cases to support this assertion, including Harris v. La.
Office of Juvenile Justice, No. CV 18-138856, 2019 WL 2617175 (4.D. La.
June 26, 2019). There, the court held that even after waiving liability from suit by
removing a claim from state court, the State of Louisiana had not waived its
immunity from lability under Title | of the ADA. Id. at *4.
The Plaintiff argues that the Louisiana legislature waived immunity from Title
[ liability when it enacted La. B.S. 13:5106(A), which states: “No suit against the state
or a state agency or political subdivision shall be instituted in any court other than a
Louisiana state court.” Following the plain language of this provision, Plaintiff
asserts, “the only immunity that the State of Louisiana enjoys is immunity from suit
in federal court,” which it waived by removing the case. (Doc. 13 at p. 4). Plaintiff also
argues that Article XII § 10(A) of the Louisiana Constitution, which reads, “Neither
the state, a state agency, nor a political subdivision shall be immune from liability in
contract or for injury to person or property,” is an “unequivocal waiver of sovereign
immunity in tort and contract.” Id.
C. Analysis
The Louisiana constitution features two provisions which govern state waiver
of sovereign immunity. Article XII, § 10(A), provides that the state is not “immune

from suit and lability in contract or for injury to person or property.” Article I § 26,
states:
The people of this state have the sole and exclusive right of governing
themselves as a free and sovereign state; and do, and forever hereafter
shall, exercise and enjoy every power, jurisdiction, and right, pertaining
thereto, which is not, or may not hereafter be, by them expressly
delegated to the United States of America in congress assembled.
As the Louisiana Supreme Court noted in Holliday v. Bd. of Supervisors of La.
State Univ. Agric. and Mechanical College, 2014-0585 (La. 10/15/14);
149 So. 3d 227, 229, Article I “makes it clear [that] the State has not waived its
sovereignty within the federal system.” In Holliday, a plaintiff sued her state
employer in Louisiana state court for violations of the FMLA. Following Coleman v.
Maryland Court of Appeals, 566 U.S. 30 (2012), where a plurality of justices held that
Congress had not validly abrogated the states’ immunity under the self-care provision
of the FMLA, the Louisiana Supreme Court then held that Louisiana had not waived
its immunity from suit under the FMLA based on adoption of FMLA terms in an
employment contract.
Louisiana’s Second Circuit Court of Appeal adopted this logic and applied it to
Title I of the ADA. Reed-Salsberry v. State Through the Dep't of Pub. Safety & Corr.,
Youth Servs., Office of Juvenile Justice, 51,104 (La. App. 2 Cir. 2/15/17),
216 So. 3d 226, 230, writ denied sub nom. Reed-Salsberry v. State through Dep't of
Pub. Safety & Corr., Youth Servs., 2017-0494 (La. 5/26/17), 221 So. 3d 81. The plaintiff
in Reed-Salsberry argued that “by virtue of La. Const. Art. 12 § 10(A), the State []
waived its sovereign immunity because the [] matter [arose] from her employment
contract.” [d. She also contended that “there was a specific waiver by the department

head, as well as an implied waiver through the actions of the State’s agents,” such as
adopting the ADA in the department’s personnel policies. [d. The Court rejected these
arguments and held that none of these actions constituted waiver of immunity for
ADA claims. Id.
The plaintiffs in Holliday and Reed-Salsberry unsuccessfully argued that their
employers had adopted federal law in their employment contracts or actions. Plaintiff
makes no such argument here. Instead, Plaintiff merely argues that Article XII
§ 10(A) is an unequivocal waiver of immunity. That is clearly not the case based on
the relevant case law. Louisiana’s immunity as a sovereign remains intact and serves
as a bar to recovery of damages and injunctive relief from claims asserted against
Louisiana under Title I of the ADA.
Therefore, the Court finds that Harris is controlling on this issue and that the
Plaintiffs claim must be dismissed under Rule 12(c). Because the Court has
determined that Defendant has waived its immunity to suit, it may exercise its
subject matter jurisdiction over this case. However, Defendant has not waived its
immunity from lability. “The Court’s dismissal of plaintiffs federal claims on the
basis of defendant’s immunity from liability is not jurisdictional and instead
constitutes an adjudication on the merits.” Harris, 2019 WL 2617175, at *4. As such,
the Court dismisses this case with prejudice.
Conclusion
Although Louisiana waived its immunity from suit by removing the case to
federal court, it has not waived its immunity from liability under Title I of the ADA.
The Court must grant judgment in Defendant’s favor on the ADA claims.

Accordingly,
IT IS ORDERED that Defendant’s Motion for Judgment on the Pleadings is
GRANTED, and claims against Defendant are dismissed with prejudice.

Baton Rouge, Louisiana, this lo day of November, 2020
ay
sy
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10191606. Public record. Not legal advice.