Hickam IV v. Office of Personnel Management

UNITED STATES DISTRICT COURT October 18, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

ERNEST JEWEL HICKAM IV, §

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Plaintiff. §

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V. § CIVIL ACTION NO. 4:23-cv-03133

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OFFICE OF PERSONNEL §

MANAGEMENT, et al., §

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Defendants. §

MEMORANDUM AND RECOMMENDATION

Pending before me are two motions to dismiss: one filed by Houston

Independent School District (“HISD”) and Gianni Ledezma (Dkt. 43); and one filed

by the Office of Personnel Management (“OPM”). Dkt. 44. For the reasons that

follow, I recommend both motions be granted.

BACKGROUND

I begin with the allegations in the First Amended Complaint—the live

pleading. See Dkt. 34. Hickam, a Navy veteran suffering from Post-Traumatic

Stress Disorder (“PTSD”), worked for HISD as a Senior Heating, Ventilation, and

Air Conditioning Repairer from December 11, 2014, until he was terminated on

August 9, 2021. Hickam alleges HISD discharged him “based on discriminatory

written warnings and a conflict . . . in which Hickam used the ‘F’ word when his

supervisor touched Hickam and got in his face.” Id. at 3. Ledezma was Hickam’s

supervisor at HISD.

After leaving HISD, Hickam took a job with TDI Industries, where he

worked from September 2021 to February 2022.

In March 2022, Hickam applied for a job with Veterans Affairs (“VA”). As

part of the job application process, Hickam was required to answer the following

question (“Question 12”):

During the last five (5) years, have you been fired from any job

for any reason, did you quit after being told that you would be fired,

did you leave any job by mutual agreement because of specific

problems, or were you debarred from Federal employment by [OPM]

or any other Federal agency? If, ‘YES,’ . . . provide the date, an

explanation of the problem, reason for leaving, and the employer’s

name and address.

Id. at 4. Hickam responded: “I was fired after a dispute with another employee[;]

I left for a better job with TDI Industries.” Id. at 5.

Hickam began working for the VA in June 2022 as an air conditioning

equipment operator. At some unspecified point in time, Ledezma informed OPM—

an independent agency of the United States government that manages the federal

civil service—“that Hickam was a danger to himself or others.” Id. OPM terminated

Hickam on April 18, 2023, purportedly for two reasons: (1) because Hickam failed

to completely answer Question 12; and (2) because Ledezma made negative

statements about Hickam to OPM. Hickam alleges that these reasons for

termination were false and a pretext for discrimination.

Hickam brings three causes of action: (1) a failure-to-accommodate claim

against OPM under § 504 of the Rehabilitation Act, recodified at 29 U.S.C. § 794;

(2) a discriminatory discharge claim against OPM under § 504; and (3) a tortious

interference claim against OPM, HISD, and Ledezma.

LEGAL STANDARD

A. RULE 12(b)(1)

Rule 12(b)(1) allows a party to challenge the subject matter jurisdiction of

the district court to hear a case. See FED. R. CIV. P. 12(b)(1). A claim is properly

dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) “when the

court lacks the statutory or constitutional power to adjudicate the claim.” In re

FEMA Trailer Formaldehyde Prods. Liab. Litig. (Miss. Plaintiffs), 668 F.3d 281,

286 (5th Cir. 2012) (quotation omitted). District courts may dismiss a claim for

lack of subject matter jurisdiction upon consideration of: “(1) the complaint alone;

(2) the complaint supplemented by undisputed facts evidenced in the record; or

(3) the complaint supplemented by undisputed facts plus the court’s resolution of

disputed facts.” Spotts v. United States, 613 F.3d 559, 566 (5th Cir. 2010)

(quotation omitted).

The party asserting jurisdiction has the burden to establish subject matter

jurisdiction. See McLin v. Twenty-First Jud. Dist., 79 F.4th 411, 415 (5th Cir.

2023). In evaluating a Rule 12(b)(1) motion, I accept all well-pleaded factual

allegations in the complaint as true, viewing them in the light most favorable to the

plaintiff. See Daniel v. Univ. of Tex. Sw. Med. Ctr., 960 F.3d 253, 256 (5th Cir.

2020). “Ultimately, a motion to dismiss for lack of subject matter jurisdiction

should be granted only if it appears certain that the plaintiff cannot prove any set

of facts in support of his claim that would entitle plaintiff to relief.” Ramming v.

United States, 281 F.3d 158, 161 (5th Cir. 2001).

B. RULE 12(b)(6)

A complaint must be dismissed when it “fail[s] to state a claim upon which

relief can be granted.” FED. R. CIV. P. 12(b)(6). “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. Although a complaint need not contain detailed factual

allegations, it “must provide the plaintiff’s grounds for entitlement to relief—

including factual allegations that . . . raise a right to relief above the speculative

level.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quotation omitted).

“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. At the dismissal

stage I construe the alleged facts in the light most favorable to the plaintiff. See

Crane v. City of Arlington, 50 F.4th 453, 461 (5th Cir. 2022).

ANALYSIS

A. FAILURE-TO-ACCOMMODATE CLAIM

Hickam asserts a failure-to-accommodate claim against OPM. To state a

prima facie failure-to-accommodate claim, Hickam must allege facts that suggest:

“(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.”

Weber v. BNSF Ry. Co., 989 F.3d 320, 323 (5th Cir. 2020) (quotation omitted).

“Plaintiffs ordinarily satisfy the knowledge element by showing that they identified

their disabilities as well as the resulting limitations to a public entity or its

employees and requested an accommodation in direct and specific terms.” Smith

v. Harris Cnty., 956 F.3d 311, 317 (5th Cir. 2020).1

OPM argues that Hickam’s failure-to-accommodate claim fails because he

(1) “has not alleged any facts—conveyed to OPM or not—regarding the

‘consequential limitations’ of his PTSD”; and (2) “fails to allege facts to plausibly

plead the causation element.” Dkt. 44 at 4–5. I need address only the first of these

arguments.

Hickam does not allege that he (1) informed the VA or OPM of his PTSD and

its consequential limitations, or (2) requested an accommodation in “direct and

specific terms.” Smith, 956 F.3d at 317. Hickam alleges that he “requested a

reasonable accommodation to complete his job application,” but he does not state

what that requested accommodation was or provide any other details regarding

OPM’s knowledge of the extent of Hickam’s disability. Dkt. 34 at 7. Elsewhere in

his complaint, Hickam suggests that OPM was required to ask him if he needed

1 Smith is a case concerning the Americans with Disabilities Act (“ADA”), not the

Rehabilitation Act. Even so, it applies with full force because “[t]he close relationship

between Section 504 of the Rehabilitation Act and Title II of the ADA means that

precedents interpreting either law generally apply to both.” Smith, 956 F.3d at 317; see

also Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (“The ADA and the

Rehabilitation Act generally are interpreted in pari materia.”).

help, which is simply not the law. See id. at 4 (“OPM did not ask Hickam if he

needed assistance in understanding the questions on the application.”).

“When a plaintiff fails to request an accommodation in [direct and specific

terms], he can prevail only by showing that the disability, resulting limitation, and

necessary reasonable accommodation were open, obvious, and apparent to the

entity’s relevant agents.” Smith, 956 F.3d at 317–18 (quotation omitted). Hickam

has not alleged facts suggesting that his PTSD was “open, obvious, and apparent”

to the VA or OPM. Id. (quotation omitted). Accordingly, Hickam has not alleged

the knowledge element of a failure-to-accommodate claim. Because Hickam’s

failure to allege the knowledge element is an independent and sufficient reason to

dismiss his failure-to-accommodate claim, I do not reach OPM’s arguments

regarding Hickam’s failure to allege causation.2

B. DISCRIMINATORY DISCHARGE CLAIM

Hickam also asserts a discriminatory discharge claim against OPM. To state

a prima facie discrimination claim under the Rehabilitation Act, Hickam must

allege facts suggesting that: “(1) he is an ‘individual with a disability’; (2) who is

‘otherwise qualified’; (3) who worked for a ‘program or activity receiving Federal

financial assistance’; and (4) . . . he was discriminated against ‘solely by reason

of . . . his disability.’” Hileman v. City of Dall., 115 F.3d 352, 353 (5th Cir. 1997)

(quoting 29 U.S.C. § 794(a)).

OPM argues that Hickam “has not alleged any facts that show the

termination of his Federal appointment with the VA following the negative

suitability determination was solely because of his disability.” Dkt. 44 at 6. As OPM

2 Regarding his failure-to-accommodate claim, Hickam complains that “OPM failed to

engage in the interactive process.” Dkt. 34 at 7. “[I]t is the employee’s initial request for

an accommodation which triggers the employer’s obligation to participate in the

interactive process of determining one. If the employee fails to request an

accommodation, the employer cannot be held liable for failing to provide one.” Taylor v.

Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996). Because Hickam has not

alleged that he specifically identified his disability and its consequential limitations, nor

that he suggested reasonable accommodations, Hickam has not established that OPM’s

obligation to engage in the interactive process was triggered.

points out, Hickam acknowledges two reasons, unrelated to his disability, for his

termination: (1) his failure to completely answer Question 12 and (2) Ledezma’s

negative statements regarding Hickam’s HISD employment. See Dkt. 34 at 5.

As to the first of these reasons, only if Hickam could state a failure-to-

accommodate claim could he suggest that it was discriminatory for OPM to fire

him for not completely responding to Question 12. But, as shown above, Hickam

cannot state a failure-to-accommodate claim. Hickam “can not hide behind the

[Rehabilitation Act] and avoid accountability for his actions.” Hamilton v. Sw. Bell

Tel. Co., 136 F.3d 1047, 1052 (5th Cir. 1998). Thus, Hickam’s acknowledgement

that OPM fired him, at least in part, because he failed to completely answer

Question 12 is fatal to any claim that OPM fired him solely because of his disability.

See id. (“The cause of [the employee’s] discharge was not discrimination based on

PTSD but was rather his failure to [comply with workplace policies].”).

C. TORTIOUS INTERFERENCE CLAIM

Hickam purportedly brings a tortious interference claim against OPM,

HISD, and Ledezma. As shown below, Hickam cannot assert a tortious interference

claim against any defendant in this action.

1. OPM3

It is black-letter law that the United States is immune from tort suits absent

a waiver of immunity. See Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981).

The Federal Tort Claims Act (“FTCA”) provides a limited waiver of sovereign

immunity. See 28 U.S.C. § 1346. The tortious interference claims at issue here,

however, fall outside the FTCA’s scope. See 28 U.S.C. § 2680(h) (excluding from

the waiver of sovereign immunity “[a]ny claim arising out of . . . interference with

3 Hickam has sued OPM, an agency of the United States. He has not sued the United

States. This is independently problematic because “[i]t is beyond dispute that the United

States, and not the responsible agency or employee, is the proper party defendant in a

Federal Tort Claims Act suit.” Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988). “Thus,

an FTCA claim against a federal agency or employee as opposed to the United States itself

must be dismissed for want of jurisdiction.” Id.

contract rights.”). Because the United States has not waived sovereign immunity

to tortious interference claims, this court lacks subject matter jurisdiction to hear

Hickam’s tortious interference claim against OPM, and it must be dismissed. See

Williamson v. U.S. Dep’t of Agric., 815 F.2d 368, 378 (5th Cir. 1987) (holding that

§ 2680(h) bars claims against the federal government regarding

misrepresentations and interference with contract rights).

2. HISD

As a public school district, HISD is a governmental unit immune from

liability unless that immunity has been waived by the Texas Tort Claims Act

(“TTCA”). Tooke v. City of Mexia, 197 S.W.3d 325, 330 n.11 (Tex. 2006)

(“Governmental immunity . . . protects political subdivisions of the States,

including . . . school districts.” (quotation omitted)). The TTCA offers a limited

waiver of immunity for certain tort claims against governmental entities, but this

waiver does not extend to intentional torts. See TEX. CIV. PRAC. & REM. CODE

§ 101.057(2) (“This chapter does not apply to a claim . . . arising out of . . . [an]

intentional tort, including a tort involving disciplinary action by school

authorities.”). Tortious interference is unquestionably an intentional tort for which

the TTCA does not waive immunity. See City of Hous. v. Hous. Metro Sec., No. 01-

22-00532-cv, 2023 WL 2602520, at *5 (Tex. App.—Houston [1st Dist.] Mar. 23,

2023, no pet.). As a result, Hickam’s tortious interference claim against HISD must

be dismissed for lack of subject matter jurisdiction. See Smith v. Hous. Indep. Sch.

Dist., 229 F. Supp. 3d 571, 578 (S.D. Tex. 2017) (dismissing tortious interference

claim against HISD based on governmental immunity).

3. Ledezma

The TTCA also mandates dismissal of Hickam’s tortious interference claim

against Ledezma. The TTCA includes an “Election of Remedies” provision, which

generally prohibits recovery from the governmental unit and its employee in the

same action. TEX. CIV. PRAC. & REM. CODE § 101.106. “Section 101.106 . . . requir[es]

plaintiffs to choose between suing the governmental unit under the [TTCA] and

suing a responsible employee in an individual capacity.” Garza v. Harrison, 574

S.W.3d 389, 399 (Tex. 2019). “If the plaintiff sues both the governmental unit and

any of its employees under the TTCA, ‘the employees shall immediately be

dismissed on the filing of a motion by the governmental unit.’” Bustos v. Martini

Club Inc., 599 F.3d 458, 462 (5th Cir. 2010) (quoting TEX. CIV. PRAC. & REM. CODE

§ 101.106(e)). Because HISD has filed a motion to dismiss, Hickam’s tortious

interference claim against Ledezma must be dismissed. See Mission Consol. Indep.

Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008) (“Under subsection (e), [the

employee is] entitled to dismissal of [plaintiff]’s suit against him upon the ISD’s

filing of a motion.”).

CONCLUSION

For the reasons discussed above, I recommend both motions to dismiss be

GRANTED.

The parties have 14 days from service of this Memorandum and

Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); FED. R.

CIV. P. 72(b)(2). Failure to file timely objections will preclude appellate review of

factual findings and legal conclusions, except for plain error.

SIGNED this day of October 2024.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE