Mire v. LSU Health Sciences Center, No. 2:2015cv06965 - Document 76 (E.D. La. 2017)
Court Description: ORDER & REASONS granting in part and denying in part 46 Motion to Dismiss for Failure to State a Claim; denying as moot 48 Motion to Stay. Signed by Judge Sarah S. Vance on 2/17/2017. (mmm)
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Mire v. LSU Health Sciences Center Doc. 76 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KRISTINA MIRE, MD CIVIL ACTION VERSUS NO. 15-6965 BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, ET AL. SECTION “R” (2) ORD ER AN D REAS ON S Defendants Dr. Bonnie Desselle, Dr. Ricardo Sorenson, and the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (the LSU Board) m ove to dism iss plaintiff Kristin a Mire, MD’s rem ainin g claim s on grounds of sovereign im m unity. For the following reasons, the Court grants the m otion in part and dism isses all of Mire’s claim s except her ADA Title I claim for reinstatem ent against Desselle an d Sorenson. I. BACKGROU N D In her Second Am en ded Com plaint, Kristina Mire, MD alleges that the LSU Health Sciences Center (LSU Health), 1 Dr. Bonnie Desselle, and Dr. Ricardo Sorenson discrim inated against her based on her disability, and that this conduct violated Titles I and II of the Am ericans with Disabilities Act of 1990 (ADA) and the ADA Am endm ents Act of 20 0 8 (ADAAA). Desselle and Sorenson are sued in their official capacities as 1 The Court has previously found that the LSU Board, rather than LSU Health, is the proper defendant, R. Doc. 44 at 7-9, and the Board has been substituted as defendant in this case. Dockets.Justia.com Program Director and Chair of LSU Health’s Departm ent of Pediatrics. 2 According to the com plaint, Mire enrolled as a m edical resident at LSU Health in J uly 20 0 6. 3 Shortly after enrolling, Mire sought treatm ent from a psychiatrist for Attention Deficit Hyperactivity Disorder. 4 She also developed insom nia, which im paired her effectiveness as a resident. 5 By Decem ber 20 0 6, Mire’s supervisors described Mire as inefficient and prone to oversleeping and tardiness. 6 Mire was inform ed of these concerns in J anuary 20 0 7. 7 In response, Mire revealed her insom nia to her program director at LSU Health. 8 By March 20 0 7, Mire’s psychiatrist suspected that Mire had an Adjustm ent Disorder and prescribed antidepressant an d antipsychotic m edication. 9 Mire, however, reacted negatively to the m edications and soon stopped taking them . 10 In J une 20 0 7, Mire received m ore unfavorable perform ance reviews. 11 Mire disclosed her adjustm ent disorder to the Chief Resident at LSU Health in J uly 20 0 7. 12 Following this disclosure, Mire was placed in a disciplinary program designed to rem ediate deficiencies in her perform ance. 13 As part of the disciplinary program , Mire was reevaluated by her psychiatrist. 14 Following this evaluation, Mire was diagnosed with Major Depressive Disorder and was once again prescribed m edication. 15 Although Mire continued to 2 3 4 5 6 7 8 9 10 11 12 13 14 15 R. Doc. 27 at 2. Id. at 1. Id. Id. at 3. Id. Id. Id. Id. at 4-5. Id. at 5. Id. at 6. Id. Id. Id. at 7. Id. 2 respond negatively to her m edication, Mire’s program director at LSU Health told Mire that she was required under the disciplinary program to take all her prescribed m edication. 16 In response, Mire requested and received perm ission to visit another psychiatrist. 17 The second psychiatrist confirm ed Mire’s diagnosis of Major Depressive Disorder, adjusted her m edication, and recom m ended a leave of absence. 18 Following this diagnosis, Mire was placed on a m odified schedule until Novem ber 20 0 7, when she was placed on a m ore rigorous “in-patient call schedule.”19 From J anuary to April 20 0 8, Mire took a leave of absence from the residency program . 20 When she returned, LSU Health did not assign her duties gradually, but instead placed Mire on “full on-call duty.”21 Following her return, Mire once again had trouble perform ing her duties, and she was placed on probation. 22 Mire appealed LSU Health’s decision to place her on probation to an internal review body. 23 This appeal was denied on J une 19, 20 0 8, and Mire was suspended from the residen cy program in August 20 0 8. 24 LSU Health cited several reasons for the suspension, including Mire’s alleged violation of the term s of her probation and unprofessional behavior. 25 Following a com petency hearing and an adm inistrative appeal process, Mire was term inated by LSU 16 17 18 19 20 21 22 23 24 25 Id. Id. Id. Id. Id. at 8 . Id. Id. Id. Id. at 10 . Id. 3 Health. 26 The Dean of the LSU Health Sciences Center School of Medicine “accepted and confirm ed” Mire’s term ination on March 21, 20 0 9. 27 Mire filed her initial com plaint in this action, alleging violations of the Am ericans with Disabilities Act, on Decem ber 21, 20 15. 28 com plaint. 29 Ten days later, Mire am ended her On March 30 , 20 16, after being granted leave to once again am end her com plaint, 30 Mire filed a Second Am en ded Com plaint. 31 In her Second Am en ded Com plaint, Mire (1) added Desselle and Sorenson as defendants in their official capacities, (2) clarified that she was asserting claim s under both Title I and Title II of the ADA, and (3) m ade m odest changes to her factual allegations. 32 On Septem ber 12, 20 16, the Court dism issed Mire’s claim s again st the LSU Board arising under Title I of the ADA and ADAAA on grounds of sovereign im m unity. 33 The LSU Board filed the m otion leading to this ruling before Mire am ended her pleading to explicitly bring claim s under Title II. The Court, therefore, granted the Board leave to file a m otion challenging those claim s within 21 days. 34 Defendants now m ove to dism iss the rem aining Title II claim s against the LSU Board, along with all claim s against Desselle and Sorenson. Defendants have separately m oved to stay discovery pen ding resolution of this m otion. 35 26 Id. Id. 28 R. Doc. 1. 29 R. Doc. 7. 30 R. Doc. 31 R. Doc. 27 32 Id. Mire’s original and First Am en ded com plaints alleged violations of the ADA and ADAAA generally, but did not specify any Titles. 33 R. Doc. 44. 34 Id. at 12. 35 R. Doc. 48. 27 4 II. LEGAL STAN D ARD Federal Rule of Civil Procedure 12(b)(1) requires dism issal of an action if the court lacks jurisdiction over the subject m atter of the plaintiff’s claim . Motions subm itted under Rule 12(b)(1) allow a party to challenge the court’s subject m atter jurisdiction based upon the allegations on the face of the com plaint. Barrera– Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996); see also Lopez v. City of Dallas, Tex., No. 0 3– 2223, 20 0 6 WL 1450 420 , at *2 (N.D. Tex. May 24, 20 0 6). In ruling on a Rule 12(b)(1) m otion to dism iss, the court m ay rely on (1) the com plaint alone, presum ing the allegations to be true; (2) the com plaint supplem ented by undisputed facts; or (3) the com plaint supplem ented by undisputed facts and by the court’s resolution of disputed facts. Den N orske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420 , 424 (5th Cir. 20 0 1); see also Barrera– Montenegro, 74 F.3d at 659. The plaintiff bears the burden of dem onstrating that subject m atter jurisdiction exists. See Paterson v. W einberger, 644 F.2d 521, 523 (5th Cir. 1981). When exam ining a factual challenge to subject m atter jurisdiction that does not im plicate the m erits of plaintiff’s cause of action, the district court has substantial authority “to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Arena v. Gray bar Elec. Co., 669 F.3d 214, 223 (5th Cir. 20 12). Accordingly, the Court m ay consider m atters outside the pleadings, such as testim ony and affidavits. See Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 50 2, 50 4 (5th Cir. 20 15). A court’s dism issal of a case for lack of subject m atter jurisdiction is not a decision on the m erits, and the dism issal does not necessarily prevent the plaintiff from pursuing 5 the claim in another forum . See Cox, Cox, Filo, Cam el & W ilson, L.L.C. v. Sasol N . Am ., Inc., 544 F. App’x 455, 456 (5th Cir. 20 13). III. D ISCU SSION Defendants m ove to dism iss all rem aining claim s on grounds of sovereign im m unity. “The Eleventh Am endm ent bars citizens of a state from suing their own state or another state in federal court unless the state has waived its sovereign im m unity or Congress has expressly abrogated it.” Raj v. Louisiana State Univ., 714 F.3d 322, 328 (5th Cir. 20 13) (internal citations om itted). Louisiana has explicitly asserted its sovereign im m unity by statute. La. Rev. Stat. § 13:510 6(A) (20 10 ) (“No suit against the state or a state agency or political subdivision shall be instituted in any court other than a Louisiana state court.”). This imm unity extends to certain State agencies as well as the State itself, and “[i]t is well-settled in the Fifth Circuit that institutions of higher education and their boards are arm s of the state entitled to im m unity.” Hall v. Bd. of Supervisors of Cm ty . & Tech. Colleges, 15-67, 20 15 WL 2383744, at *4 (E.D. La. May 18, 20 15); see also Raj, 714 F.3d at 328 (“[T]he LSU Board is an arm of the state and is im m une from suit under the Eleventh Am endm ent.”). The Court first considers Mire’s Title I claim s against Desselle and Sorenson and then Mire’s Title II claim s against all defendants. 6 A. Title I – D e s s e lle an d So re n s o n In its order regarding the LSU Board’s first m otion to dism iss, the Court found that Congress has not validly abrogated Louisiana’s im m unity from Title I claim s, that the Board is an arm of the state, and that Mire’s Title I claim against the LSU Board was therefore barred by the Eleventh Am endm ent. Mire argues that her claim s against Desselle and Sorenson escape this fate because they fall under the lim ited exception articulated in Ex parte Young, 20 9 U.S. 123 (190 8). “In determ ining whether the doctrine of Ex parte Young avoids an Eleventh Am endm ent bar to suit, a court need only conduct a straightforward inquiry into whether the com plaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Com m ’n of Md., 535 U.S. 635, 645 (20 0 2) (internal quotations and m odifications om itted). In this case, Mire seeks, am ong other rem edies, reinstatem ent to her previous position as a m edical resident. The Suprem e Court recognizes that private parties can sue for injunctive relief under Young to enforce the standards of Title I. Bd. of Trustees of Univ. of Alabam a v. Garrett, 531 U.S. 356, 374 n.9 (20 0 1). Further, the Fifth Circuit “has always treated Ex parte Young as an appropriate vehicle for pursuing reinstatem ent to a previous job position.” N elson v. Univ. of Texas at Dallas, 535 F.3d 318, 322 (5th Cir. 20 0 8). Accordingly, in this circuit, Mire’s com plaint alleges an ongoing violation for purposes of Ex parte Young and seeks prospective relief. Because Mire’s claim s also arise under the ADA, a federal law, they are not barred by the Eleventh Am endm ent. See McCarthy ex rel. Travis v. Haw kins, 38 1 F.3d 40 7, 413-14 (5th Cir. 20 0 4) (holding that state officers in their official capacities were proper defen dants in Ex parte Young suit to enforce the officers’ alleged duties under Title II of the ADA); Koslow v. Com m onw ealth of Pennsy lvania, 30 2 F.3d 161, 178 (3d 7 Cir. 20 0 2) (“While there appears to be no in dividual liability for dam ages under Title I of the ADA . . . prospective relief again st state officials acting in their official capacities m ay proceed under the statute.”). Desselle and Sorenson attem pt to resist this conclusion by arguing that they are not “em ployers” under the ADA and therefore are not proper Title I defendants. But, as state officials sued in their official capacity, Desselle and Sorenson “represent[] their respective state agencies . . . for all purposes except the Eleventh Am endm ent.” McCarthy ex rel. Travis, 38 1 F.3d at 414. Because Desselle and Sorenson m ake no showing that the LSU board is not an em ployer under the ADA, this argum ent fails. See Garrett, 531 U.S. at 374 n.9 (20 0 1) (noting that Title I “can be enforced . . . by private individuals in actions for injunctive relief under Ex parte Young.”); W hitfield v. Tennessee, 639 F.3d 253, 257 (6th Cir. 20 11) (holding that com plaint against state em ployee in official capacity “contain[ed] an Ex parte Young action for reinstatem ent pursuant to Title I of the ADA.”). Desselle and Sorenson’s only supporting case, Franklin v. City of Slidell, 936 F. Supp. 2d 691 (E.D. La. 20 13), did not concern Ex parte Young, and is therefore distinguishable. For these reasons, the Court finds that Mire’s claim against Desselle and Sorenson for reinstatem ent m ay proceed, but all other Title I claim s (i.e. for backpay or com pensatory dam ages) m ust be dism issed. B. Title II – All D e fe n d an ts In addition to her Title I claim s, Mire brings claim s against all three defendants under Title II of the ADA and ADAAA. Title II protects qualified disabled individuals 8 against exclusion from “the services, program s, or activities of a public entity.”36 42 U.S.C. § 12132 (20 12). In United States v. Georgia, 546 U.S. 151, 159-60 (20 0 6), the Suprem e Court held that Title II validly abrogates state sovereign im m unity for conduct that violates the Constitution. The Court established a three-part test for determ ining whether this abrogation of state sovereign im m unity applies in a particular case: a court m ust (1) “consider ‘which aspects of the State’s alleged conduct violated Title II’”; (2) “determ ine ‘to what extent such m isconduct also violated the Fourteenth Am endm ent.’”; and (3), if it finds that the conduct violated Title II but not the Fourteenth Am endm ent, “the court m ust then determ ine ‘whether Congress’s purported abrogation of sovereign im m unity as to that class of conduct is nevertheless valid.’” Hale v. King, 642 F.3d 492, 498 (5th Cir. 20 11) (quoting Georgia, 546 U.S. at 159). Because the first prong of this test requires an exam ination of the m erits of the plaintiff’s case, the Court begins by applying the Rule 12(b)(6) standard to Mire’s claim s. Hale, 642 F.3d at 498. In this case, the LSU Board has raised the statute of lim itations as a defense. 37 “A statute of lim itations m ay support dism issal under Rule 12(b)(6) where it is evident from the plaintiff’s pleadings that the action is barred and the pleadings fail to raise som e basis for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 20 0 3). Mire 36 “Unlike Title I of the ADA, Title II does not create a cause of action for em ploym ent discrim ination.” Tay lor v. City of Shreveport, 798 F.3d 276, 282 (5th Cir. 20 15). At least one court has found that a m edical residency is “m ore akin to a program of higher education than an em ploym ent position,” and that a discharged resident m ay therefore bring claim s under Title II. Sarkissian v. W . Va. Univ. Bd. of Governors, No. 0 5-144, 20 0 7 WL 130 8978, at *8 (N.D.W. Va. May 3, 20 0 7); see also Davis v. Mann, 882 F.2d 967, 974 (5th Cir. 1989) (“It is well-known that the prim ary purpose of a residency program is not em ploym ent or a stipend, but the academ ic training and the academ ic certification for successful com pletion of the program .”). Because the Court finds that Mire’s Title II claim is tim e-barred, it need n ot reach the question of whether a claim for wrongful term ination from a m edical residen cy program is cognizable under Title II. 37 R. Doc. 38 at 2; R. Doc. 46-2 at 2. 9 alleges that she was discharged from the residency program on March 21, 20 0 9. 38 She filed this action m ore than six years later, on Decem ber 21, 20 15. 39 Mire alleges that her claim s arise under both the ADA, and the ADAAA which m odified the origin al law. Neither law contains a statute of lim itations. Fram e v. City of Arlington, 657 F.3d 215, 237 (5th Cir. 20 11). For claim s cognizable under the pream endm ent ADA, courts borrow the “m ost analogous” forum -state lim itation period. Id. In Louisiana, the relevant period is the state’s one-year personal injury statute of lim itations. Joseph v. Port of N ew Orleans, No. 99-1622, 20 0 2 WL 342424, at *12 (E.D. La. Mar. 4, 20 0 2); see also Fram e, 657 F.3d at 237 (applying Texas’ person al injury statute of lim itations to ADA claim ). If, however, Mire’s claim s were not cognizable under the pre-am en dm ent ADA, and were therefore only “m ade possible” by the am endm ents contained in the ADAAA, the Court m ust apply the default four-year lim itations period for causes of action arising under Acts of Congress enacted after Decem ber 1, 1990 . See 28 U.S.C. § 1658(a) (20 12); Fram e, 657 F.3d at 237. Regardless of which period applies, the question of when an ADA claim accrued is answered under federal law. Fram e, 657 F.3d at 238. Mire’s claim s therefore accrued when she had “sufficient inform ation to know that [s]he ha[d] been denied the benefits of a service, program , or activity of a public entity.” Id. Under this standard, Mire’s claim s accrued, at the latest, on the date of her dism issal from the residen cy program in March 20 0 9. The Court therefore need not decide whether Mire’s claim was “m ade possible” by the ADAAA. Mire first filed suit in 20 15, and the claim therefore, absent any tolling, has expired under either period. 38 39 R. Doc. 27 at 10 . R. Doc. 1. 10 To resist the conclusion that her Title II claim s are prescribed, Mire argues that: (1) her Title II claim s were asserted in her original com plaint, not m erely her secon d com plaint; (2) her dism issal constitutes an ongoing violation of the ADA; and (3) the facts supporting Mire’s Title II claim were part of the EEOC investigation, and the statute of lim itations was therefore tolled. These argum ents fail. As to Mire’s first argum ent, it is irrelevant whether Mire’s Title II claim s were first asserted in her original com plaint or in a later com plaint. As explained above, Mire’s claim s prescribed before she filed this suit. Mire’s second argum ent is also quickly dispatched; Mire cites no case holding that term ination constitutes a continuing course of conduct for prescription purposes, and such argum ents have been rejected as frivolous. See W aller v. W al-Mart Stores, Inc., No. 93-588, 1994 WL 243718, at *2 (E.D. Tex. J an. 18 , 1994) (rejecting as frivolous plaintiffs argum ent that discrim ination continued after she was term inated). Mire’s supporting cases do not concern term ination from a job, m edical residency, or any sim ilar program and are therefore easily distinguishable. See Glass v. Petro-Tex Chem . Corp., 757 F.2d 1554, 1561 (5th Cir. 1985) (acknowledging that “a persisting and continuing system of discrim inatory practices in prom otion or transfer” m ay constitute an ongoing violation); Joseph S. v. Hogan, 561 F. Supp. 2d 280 , 286 (E.D.N.Y. 20 0 8) (holding that alleged “warehousing [of] individuals with m ental illness in nursing hom es” was an ongoing violation); Martin v. Voinovich, 8 40 F. Supp. 1175, 1180 (S.D. Ohio 1993) (holding that state’s alleged failure to provide com m unity housing and other services to m entally disabled residents constituted ongoing violation). Mire’s final argum ent is that the lim itations period was tolled by her pursuit of adm in istrative rem edies before the Equal Em ploym ent Opportunity Com m ission and 11 Departm ent of J ustice. 40 When a plaintiff is required to exhaust available adm inistrative rem edies before filing suit, the relevant statute of lim itations m ay be tolled pending the adm in istrative action. See e.g., Harris v. Hegm ann, 198 F.3d 153, 158 (5th Cir. 1999) (tolling lim itations period where “exhaustion requirem ent functioned as a legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action.” (internal quotations om itted)). If the relevant law contains no exhaustion requirem ent, the lim itations period continues to run even while plaintiff pursues an optional adm inistrative rem edy. Radford v. Gen. Dy nam ics Corp., 151 F.3d 396, 399 (5th Cir. 1998) (“If there is no exhaustion requirem ent, there is no need to toll the statute [of lim itations].”). Although the Fifth Circuit has twice declin ed to reach the question, see Holm es v . Texas A&M Univ., 145 F.3d 681, 684 (5th Cir. 1998), and Decker v. Univ. of Houston, No. 97-20 50 2, 1998 WL 698920 , at *9 (5th Cir. Sept. 15, 1998), the clear consensus am ong other courts is that Title II, unlike Title I, im poses no adm in istrative exhaustion requirem ent. See Elw ell v. Oklahom a ex rel. Bd. of Regents of Univ. of Oklahom a, 693 F.3d 130 3, 130 9 (10 th Cir. 20 12) (“[Title II] lacks the requirem ent that an otherwise qualified individual exhaust EEOC adm in istrative rem edies before bringing suit.”); Leine v. California Dep’t of Rehab., 20 5 F.3d 1351, 1351 (9th Cir. 1999) (“Title I . . . has an exhaustion requirem ent, but Title II does not.”); Bledsoe v. Palm Beach Cty . Soil & W ater Conservation Dist., 133 F.3d 816, 824 (11th Cir. 1998) (noting that exhaustion “is m andatory in Title I but not in Title II of the ADA.”); Sm ith v. City of Philadelphia, 345 F. Supp. 2d 482, 487 (E.D. Pa. 20 0 4) (“There is ‘no requirem ent that plaintiffs file an adm inistrative com plaint or otherwise follow the procedural 40 R. Doc. 27 at 10 -11. 12 requirem ents of Title I when filing a Title II claim .’” (quoting W agner v. Texas A & M Univ., 939 F. Supp. 1297, 130 9 (S.D. Tex. 1996))); see also 28 C.F.R. pt. 35, App. B § 35.172 (20 11) (“Because [Title II] does not require exhaustion of adm inistrative rem edies, the com plainant m ay elect to proceed with a private suit at any tim e.”); Mary Jo C. v. N ew York State & Local Ret. Sy s., 70 7 F.3d 144, 170 (2d Cir. 20 13) (stating without deciding that “it appears that those filing suit under Title II need not” exhaust adm inistrative rem edies). The Court finds the reasoning of these cases persuasive and holds that Title II of the ADA contains no exhaustion requirem ent. Accordingly, the lim itation period for Mire’s Title II claim was not tolled during her pursuit of adm inistrative rem edies, and the claim is barred. See Thorne v. Hale, No. 0 8-60 1, 20 0 9 WL 890 136, at *5 (E.D. Va. Mar. 26, 20 0 9) (“[B]ecause plaintiffs are not required to exhaust their adm inistrative rem edies before bringing suit pursuant to Title II, notifying state or federal agencies of a potential claim does not toll the statute of lim itations.”). Because the lim itation period was not tolled, and her injuries are not ongoing, Mire’s Title II claim s are tim e barred. Mire has therefore failed to state a claim for violation of Title II, and the Court m ust dism iss her claim before reaching the rem aining prongs of the Georgia test. See Hale v. King, 642 F.3d. 492, 50 3-50 4 (5th Cir. 20 11); Zibbell v. Michigan Dep’t of Hum an Servs., 313 F. App’x 843, 8 47 (6th Cir. 20 0 9) (“[B]ecause the district court correctly determ ined that the Zibbells failed to state an ADA claim , it need not—and should not—have ventured into the consideration of im m unity under the Eleventh Am endm ent.”). Accordingly, Mire’s Title II claim s are dism issed. 13 IV. CON CLU SION For the foregoing reasons, defendants’ m otion to dism iss is GRANTED IN PART AND DENIED IN PART. Mire’s claim s for reinstatem ent under Title I of the ADA and ADAAA against Desselle and Sorenson in their official capacities rem ain. All other claim s under Title I are DISMISSED WITHOUT PREJ UDICE. All of Mire’s claim s arising under Title II of the ADA and ADAAA are DISMISSED WITH PREJ UDICE. Defendants’ m otion to stay discovery pending resolution of this m otion is DENIED AS MOOT. New Orleans, Louisiana, this _ 17th_ day of February, 20 17. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 14
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