Franklin v. City of Slidell

928 F.Supp.2d 874

Troy Reginald FRANKLIN

v.CITY OF SLIDELL, et al.

Civil Action No 12–1940.

United States District Court, E.D. Louisiana.

March 6, 2013.

Troy Reginald Franklin, Slidell, LA, pro se.

Lawrence Emerson Abbott, Nancy Brechtel, Cotten, Schmidt & Abbott, LLP New Orleans, LA, Jeanne Roslyn Lemmon, Leah Taschek Therio, Cowan & Lemmon, L.L.P., Hahnville, LA, for Defendants.

ORDER AND REASONS

CARL J. BARBIER, District Judge.

Before the Court are a 12(b)(6) Motion to Dismiss for Failure to State a Claim filed by Defendant, Dr. James Klein (“Dr. Klein”) (Rec. Doc. 22) and Plaintiff's opposition (Rec. Doc. 27). Dr. Klein's motion was set for hearing on the briefs on November 21, 2012. Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that Dr. Klein's Motion to Dismiss (Rec. Doc. 22) should be GRANTED, for reasons explained more fully below.

PROCEDURAL HISTORY AND BACKGROUND FACTS

On July 26, 2012, Plaintiff, Troy Franklin, filed the instant pro se employment discrimination lawsuit. (Compl., Rec. Doc. 1) Plaintiff attempts to assert claims under the Americans With Disabilities Act (“ADA”) for disability discrimination, disclosure of confidential medical information, and being required to take a fit for duty examination before returning to work from medical leave; a claim under Title VII for retaliation; a claim under Section 1981 for racial discrimination; and claims under Louisiana law. Plaintiff seeks the following, nonexclusive items of damages: (1) back-pay with benefits, front pay with benefits, or retirement if front pay is not a viable option, (2) general damages for loss of reputation, inconvenience, and the abuse he allegedly received, (3) punitive damages, (4) costs, and (5) all other equitable relief the Court deems proper. (Compl., Rec. Doc. 1, p. 3)

Plaintiff alleges that he was formerly employed by the City of Slidell, as a senior corrections officer in the Slidell Police Department. In September of 2010, the Slidell Chief of Police, Randy Smith, allegedly relieved Plaintiff of all duties with the Slidell Police Department after Dr. Klein performed a psychological evaluation on Plaintiff and found that he was not fit for duty as a law enforcement officer. Plaintiff subsequently filed suit against the City of Slidell (“the City”), Dr. Klein, and six City employees, including: (1) Chief Randy Smith (“Chief Smith”), of the Slidell Police Department, (2) Captain Kevin Foltz (“Captain Foltz”), of the Slidell Police Department, (3) Captain Robert Jacobs (“Captain Jacobs”), of the Slidell Police Department, (4) Lieutenant Rockwell McLellan (“Lieutenant McLellan”), of the Slidell Police Department, (5) D. Rene Johnson (“Johnson”), the Slidell Civil Service Personnel Director, and (6) Tim Mathison (“Mathison”), the City's Chief Administrative Officer (collectively “employee Defendants”).

In his Complaint, Plaintiff makes the following allegations.¹ On September 5, 2008, he received a death threat from Captain Robert Jacobs. (Pl.'s Opp. to Dr. Klein's Mot. to Dismiss, Rec. Doc. 27, p. 1) After receiving the death threat, he filed a complaint with the Slidell Police Department's Internal Affairs division and was referred to the employee assistance program. (Pl.'s Opp. to Dr. Klein's Mot. to Dismiss, Rec. Doc. 27, p. 1) An unidentified individual at the employee assistance program informed Plaintiff that he might be suffering from “Post Traumatic Syndrome.” (Pl.'s Opp. to Dr. Klein's Mot. to Dismiss, Rec. Doc. 27, p. 1) Thereafter, Plaintiff completed a “first report of injury” ² and was referred to Dr. Harold Ginzburg for a psychiatric evaluation. (Pl.'s Opp. to Dr. Klein's Mot. to Dismiss, Rec. Doc. 27, p. 1) Dr. Ginzburg found that he was fit for duty but needed counseling. Dr. Ginzburg recommended that Plaintiff and Captain Jacobs be separated. (Pl.'s Opp. to Dr. Klein's Mot. to Dismiss, Rec. Doc. 27, p. 1) Captain Jacobs and Plaintiff were never separated. Thereafter, Plaintiff reports that he received numerous unexpected visits from Captain Jacobs and that he went out on sick leave “with the understanding of Chief Freddy Drennan.” (Pl.'s Opp. to Dr. Klein's Mot. to Dismiss, Rec. Doc. 27, p. 1) Plaintiff kept Freddy Drennan, then the Slidell Chief of Police, informed of his progress in counseling, and in June 2010, he negotiated with Chief Drennan to return to work from sick leave. (Pl.'s Opp. to Dr. Klein's Mot. to Dismiss, Rec. Doc. 27, p. 1)

On June 25, 2010, Freddy Drennan signed an authorization permitting Plaintiff to return to work on administrative duties. (Compl., Rec. Doc. 1, p. 2, ¶ 1) In the middle of June 2010, Lieutenant McLellan and Captain Foltz met with Chief Smith, then the Chief-elect set to succeed Freddy Drennan, and disclosed medical information to Chief Smith to lead him to believe that Plaintiff was not fit for duty. (Compl., Rec. Doc. 1, p. 2, ¶ 2) Thereafter, Chief Smith met with Dr. Klein, and Dr. Klein submitted a proposal to be paid for a psychological evaluation. (Compl., Rec. Doc. 1, p. 2, ¶ 3) On July 1, 2010, his first day of office, Chief Smith wrote a letter to Plaintiff requiring Plaintiff submit to a fitness for duty evaluation. Plaintiff alleges that Chief Smith did not provide a valid reason, and was, therefore, in violation of the ADA guidelines. (Compl., Rec. Doc. 1, p. 2, ¶ 5) Plaintiff asserts that in a letter dated August 20, 2010, Dr. Klein “found the Plaintiff to be unfit for duty base [sic] on bad information and standards not applied by the Americans with Disabilities Act, no evidence of direct threat was provided.” (Compl., Rec. Doc. 1, p. 2, ¶ 8) Plaintiff further asserts that in a letter dated September 2, 2010, Chief Smith relieved him of all duties and responsibilities with the Slidell Police Department and on September 14, 2010, announced in a staff meeting that Plaintiff no longer worked at the Slidell Police Department. (Compl., Rec. Doc. 1, p. 3, ¶ 9)

Plaintiff alleges that his employer, the City of Slidell, the six City employees named as Defendants, and Dr. Klein all intentionally took actions to violate his rights in order to retaliate against him for filing a discrimination complaint, a civil lawsuit, and “for personal gain.” (Compl., Rec. Doc. 1, p. 1) Plaintiff further alleges that Dr. Klein acted on the City's behalf and in its interest, as its agent, in performing the fitness for duty evaluation. He asserts that Dr. Klein became an active participant in the alleged discrimination and retaliation upon receiving the information contained in the exhibits that Dr. Klein attached to his motion to dismiss. ³(Pl.'s Opp. to Dr. Klein's Mot. to Dismiss, Rec. Doc. 27, p. 2) Plaintiff contends that Dr. Klein should have refused to perform the fitness for duty evaluation, because it was obvious in light of the materials attached to Dr. Klein's motion to dismiss that the test was “politically, racial [sic], retaliatory motivated.” (Pl.'s Opp. to Dr. Klein's Mot. to Dismiss, Rec. Doc. 27, p. 2) Plaintiff also alleges that Dr. Klein was interested in providing “off the books” psychiatric services to the City of Slidell.⁴ (Pl.'s Opp. to Dr. Klein's Mot. to Dismiss, Rec. Doc. 27, p. 2)

On December 3, 2010, Plaintiff filed a Charge of Discrimination with the EEOC, alleging that the City of Slidell and the Slidell Police Department discriminated against him on the basis of his race and disability and retaliated against him. (Ex. L to Pl.'s Opp. to City Def.'s Mot. to Dismiss, Charge of Discrimination, Rec. Doc. 12–1, p. 47) In the Charge of Discrimination, Plaintiff described the allegedly discriminatory events as follows:

I was released for return to work on July 15, 2010. Chief Randy Smith informed me I had to take a physical. Around August 13, 2010, I was told that I couldn't go back to work because I failed part of the physical. I believe I'm being discriminated against because of my race, Black, disability and in retaliation for filing a previous charge of discrimination with EEOC. Although I was released for work by my doctor, Chief Smith informed me I couldn't return to work because I was psychotic, delusional, and paranoid. Base [sic] on information provided by Dr. Alan James Klein Ph.D. It also stated that I was not fit to work for any law enforcement agency.

(Ex. L to Pl.'s Opp. to City Def.'s Mot. to Dismiss, Charge of Discrimination, Rec. Doc. 12–1, p. 47)

The United States Equal Opportunity Employment Commission (“EEOC”) concluded that based upon its investigation, it was unable to conclude that the information obtained established violations of Title VII, the ADA, the Genetic Information Nondiscrimination Act, or the Age Discrimination in Employment Act. On April 27, 2012, the EEOC mailed Plaintiff a Notice of Right to Sue. (Compl., Rec. Doc. 1, p. 3, ¶ 12)

PARTIES' ARGUMENTS

Dr. Klein argues that Plaintiff's claims against him under Title VII should be dismissed, because Title VII only authorizes claims against a Plaintiff's employer or agent. Dr. Klein further argues that Plaintiff has failed to state a claim against him for violation of the ADA, because: (1) Dr. Klein has no employment relationship with Plaintiff, and (2) Plaintiff failed to allege that he is disabled or plead any facts that would suggest he has a disability and is thus a member of a protected class under the ADA. Lastly, Dr. Klein argues that Plaintiff's claims against Dr. Klein sound in medical malpractice under the factors articulated in Coleman v. Deno, 2001–1517 (La.1/25/02); 813 So.2d 303, and must be dismissed, because they are prescribed. Specifically, Dr. Klein argues that Louisiana Revised Statute 9:5628 provides that an action for medical malpractice must be brought within one year of the alleged malpractice. Dr. Klein asserts that Plaintiffs' claims against him arise out of a fitness for duty evaluation performed on August 11, 2010, nearly two years before Plaintiff filed suit. Thus, Dr....