Reyes v. Tidewater Inc et al, No. 2:2017cv17739 - Document 22 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 10 Motion to Dismiss. Plaintiff's retaliation claims under the ADA and the ADEA are DISMISSED WITHOUT PREJUDICE. Plaintiff has 21 days to amend his complaint. Signed by Judge Sarah S. Vance on 4/12/2018. (cg)
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Reyes v. Tidewater Inc et al Doc. 22 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J UAN REYES, J R. CIVIL ACTION VERSUS NO. 17-17739 TIDEWATER INC. AND TIDEWATER MARINE, LLC SECTION “R” (5) ORD ER AN D REASON S Before the Court is defendants’ partial m otion to dism iss. 1 For the following reasons, the m otion is granted. I. BACKGROU N D This case arises out of claim s of age and disability discrim ination in em ploym ent and unlawful retaliation. 2 Plaintiff J uan Reyes, J r. alleges that he worked for Defendants Tidewater, Inc. and Tidewater Marine, LLC as a m aritim e engineer. 3 In J anuary 20 13, defendants allegedly required plaintiff to undergo a physical exam ination. 4 According to the com plaint, the exam ining physician cleared plaintiff to work but stated that he could not take prescription pain m edication while working offshore. 5 Plaintiff asserts 1 2 3 4 5 R. Doc. 10 . R. Doc. 1. Id. at 2 ¶¶ 16-17. Id. at 3 ¶ 19. Id. at 3 ¶ 20 . Dockets.Justia.com that he was willing to com ply with this condition. 6 Plaintiff further alleges that he provided defendants with notes from his treating physicians stating that he was no longer being prescribed pain medication. 7 But defendants allegedly refused to perm it plaintiff to return to work under any terms. 8 Plaintiff was born in 1955. 9 He alleges that defendants perm itted engineers under the age of 40 to continue working despite m edical problems that were as or m ore severe than his condition. 10 On November 1, 20 13, plaintiff filed a charge of age and disability discrim ination with the Equal Em ploym ent Opportunity Com m ission (EEOC). 11 According to the com plaint, plaintiff called the Tidewater Marine personnel department in March 20 14 to inquire about returning to work, and he was told that he could not return to work because he had filed an EEOC charge. 12 This decision was allegedly m ade at Tidewater, Inc.’s New Orleans headquarters. 13 The EEOC issued plaintiff a notice of his right to sue on September 29, 20 17. 14 6 7 8 9 10 11 12 13 14 Id. at 3 ¶ 22. Id. at 3 ¶ 24. Id. at 3 ¶ 25. Id. at 1 ¶ 2. Id. at 3 ¶ 26. Id. at 2 ¶ 9; R. Doc. 10 -2 at 4. R. Doc. 1 at 4 ¶ 28. Id. R. Doc. 10 -2 at 1. 2 On December 22, 20 17, plaintiff filed a com plaint alleging em ploym ent discrim ination in violation of the Am ericans with Disabilities Act (ADA) and the Age Discrim ination in Em ploym ent Act (ADEA). 15 The com plaint alleges that defendants refused to allow plaintiff to return to work and later term inated his employm ent because of his age and perceived disability. 16 Plaintiff further alleges unlawful retaliation under the ADA and the ADEA. 17 Defendant now m oves to dism iss plaintiff’s retaliation claim s. 18 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. See Lorm and v. US Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9). 15 16 17 18 R. Doc. 1. Id. at 4 ¶ 32, 5 ¶¶ 46-47. Id. at 5 ¶ 39, 6 ¶ 52. R. Doc. 10 . 3 A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal relevant evidence of each elem ent of the plaintiff’s claim. Lorm and, 565 F.3d at 257. The claim m ust be dism issed if there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7). III. D ISCU SSION Defendants assert that plaintiff’s retaliation claim s m ust be dism issed because he failed to exhaust his adm inistrative rem edies. 19 Before proceeding with a civil action under the ADA or the ADEA, a plaintiff m ust tim ely file an adm inistrative charge with the EEOC. See Patton v. Jacobs Eng. Grp., Inc., 874 F.3d 437, 443 (5th Cir. 20 17); Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988). The am ount of tim e that a plaintiff has to 19 R. Doc. 10 . 4 file a charge with the EEOC depends on whether the unlawful practice occurred in a “nondeferral” state or a “deferral” state. Clark, 854 F.2d at 765. Louisiana is a deferral state for purposes of the ADA and the ADEA, and plaintiff was thus required to file his charge within 30 0 days of the alleged unlawful em ploym ent act. See Patton, 874 F.3d at 443; W alton-Lentz v. Innophos, Inc., 476 F. App’x 566, 570 (5th Cir. 20 12); Conner v. La. Dep’t of Health and Hospitals, 247 F. App’x 480 , 481 (5th Cir. 20 0 7) (citing La. R.S. 51:2231 et seq.). Plaintiff filed an adm inistrative charge with the EEOC in November 20 13 alleging discrim ination on the basis of age and disability. 20 But plaintiff did not file a new adm inistrative charge after defendants allegedly informed him in March 20 14 that he could not return to work because he had filed an EEOC charge. Defendants assert that they thus had no notice or opportunity to respond to the retaliation charge in the adm inistrative process. 21 Defendants therefore contend that plaintiff failed to exhaust his adm inistrative remedies as to retaliation. 22 Plaintiff argues that he was not required to am end or refile his EEOC charge to add retaliation claim s because the retaliation grew out of his initial 20 21 22 R. Doc. 1 at 2 ¶ 9; R. Doc. 10 -2 at 4. R. Doc. 10 -1 at 7. Id. 5 charge. 23 Plaintiff relies on the Fifth Circuit’s decision in Gupta v. East Texas State University , 654 F.2d 411 (5th Cir. 1981). The Gupta Court held that “it is unnecessary for a plaintiff to exhaust adm inistrative remedies prior to urging a retaliation claim growing out of an earlier charge.” Id. at 414. The Fifth Circuit reasoned that “[i]t is the nature of retaliation claim s that they arise after the filing of the EEOC charge.” Id. Requiring that a new charge be filed “would serve no purpose except to create additional procedural technicalities when a single filing would com ply with the intent of” the statute. Id. But the Fifth Circuit has held that the Gupta exception does not apply when a plaintiff alleges that the same adverse em ploym ent action was the result of both discrim ination and retaliation. See Sim m ons-My ers v. Caesars Entertainm ent Corp., 515 F. App’x 269, 273-74 (5th Cir. 20 13); Sapp v. Potter, 413 F. App’x 750 , 752-53 (5th Cir. 20 11); see also Phipps v. Housing Auth. of N ew Orleans, No. 15-3296, 20 16 WL 164916, at *4 (E.D. La. 20 16). Here, the com plaint alleges that defendants refused to allow plaintiff to return to work, and later term inated his employm ent, because of his age, his disability, and his EEOC charge. 24 Because plaintiff asserts 23 24 R. Doc. 12 at 1. R. Doc. 1 at 4-6. 6 claim s of discrim ination and retaliation arising out of the sam e adverse em ploym ent action, his claim s do not fall within the Gupta exception. The com plaint does not indicate that plaintiff inform ed the EEOC of his retaliation allegations. Accordingly, his retaliation claim s m ust be dism issed for failure to exhaust adm inistrative rem edies. Plaintiff requests leave to amend his com plaint. 25 The Court will “freely give leave [to am end] when justice so requires.” Fed. R. Civ. P. 15(a). The Supreme Court has held that “[i]f the underlying facts or circum stances relied upon by a plaintiff m ay be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the m erits.” Fom an v. Davis, 371 U.S. 178, 182 (1962). Leave to am end, however, “is by no m eans autom atic.” Halbert v. City of Sherm an, 33 F.3d 526, 529 (5th Cir. 1994). The Court considers m ultiple factors, including “undue delay, bad faith or dilatory m otive on the part of the m ovant, repeated failure to cure deficiencies by am endments previously allowed, undue prejudice to the opposing party by virtue of allowance of the am endment, [and] futility of am endm ent.” Fom an, 371 U.S. at 182. Plaintiff asks to amend his complaint to add allegations that he wrote a letter to the EEOC in late March 20 14 stating that Tidewater told him that 25 R. Doc. 12 at 5. 7 he could not be rehired because of his com plaint to the EEOC. 26 Plaintiff argues that this letter provided notice to the EEOC that a reasonable investigation should encom pass retaliation. 27 Defendants do not respond to plaintiff’s request for leave to amend. Plaintiff has not previously am ended his com plaint, and there is no indication of undue delay, bad faith, or dilatory m otive. Nor is it clear that am endment would be futile. Cf. McClain v. Lufkin Indus., Inc., 519 F.3d 264, 272-74 (5th Cir. 20 0 8) (exam ining the actual scope of the EEOC’s investigation and whether a plaintiff’s letter sufficiently advised the agency of his claim s). The Court therefore grants leave to amend. IV. CON CLU SION For the foregoing reasons, defendants’ m otion to dism iss is GRANTED. Plaintiff’s retaliation claim s under the ADA and the ADEA are DISMISSED WITHOUT PREJ UDICE. Plaintiff has 21 days to am end his com plaint. New Orleans, Louisiana, this _ 12th _ day of April, 20 18. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 26 27 Id. Id. at 5-6. 8
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