Lefkowitz v. Adm'rs of Tulane Educ. Fund

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JANE ANNE LEFKOWITZ v. ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND, ET AL.

Civil Action No. 21-1578

United States District Court, E.D. Louisiana

February 7, 2022

SECTION “B” (5)

ORDER AND REASONS

Before the court are defendants' motion to dismiss (Rec. Doc 10), and plaintiff's memorandum in opposition (Rec. Doc 28), For the following reasons, and subject to below noted conditions, IT IS ORDERED that the motion to dismiss is GRANTED.

I. FACTS AND PROCEDURAL HISTORY

This action arises from civil torts claims, as well as a claim for federal disability discrimination. Pro se plaintiff Jane Anne Lefkowitz names as defendants Administrators of Tulane Educational Fund (“Tulane”), Troy Smith, Nicole Smith, and Grinasha Dillon (“Individual Tulane Defendants”) (collective “defendants”). Rec. Doc. 1-2 (Entire State Court Record).

Plaintiff is a former Tulane employee who worked as a Peer Support Specialist^[1] at the Early Psychosis Intervention Clinic - New Orleans (“EPIC-NOLA”). Rec. Docs. 9-10. As a Peer Support Specialist, she was required to perform support services for patients receiving treatment for behavioral health conditions. From the outset of plaintiff's employ at Tulane's facility, she contends that Tulane was fully aware that she had a pre-existing mental health disability requiring workplace sensitivity and training. Rec. Doc. 9.

She alleges being subjected to a mirage of violent episodes, insults, and harassment by her co-workers and supervisors during the 2019 calendar year.^[2] Id. Specifically, she asserts defendants Grinasha Dillon and Nicole Smith were harassing her repeatedly when they referred to Tulane patients as “crazy.” Id. According to plaintiff, both Dillon and Smith knew that such patient name-calling would agitate and upset her. Id. She alleges harassment also occurred when co-workers and supervisors placed a sign on the workplace breakroom refrigerator depicting “crazy” people and ridiculing the patients. Rec. Doc. 9. Additionally, plaintiff asserts emotional injury when Tulane denied her credit for work performed and denied her an opportunity to present a “long-prepared for presentation.” Id. She also claims to have suffered severe emotional distress resulting from exclusion in workplace events and team-building outings. Id.

On or about September 16, 2019, plaintiff met with Tulane supervisors Michael Dyer and Ashley Weiss to discuss the abovementioned allegations of harassment. Id. In an alleged hostile tone, Weiss informed plaintiff that she needed to address her concerns to Philip Wattle in Human Resources. Id. On or about September 18, 2019, plaintiff met with Mr. Wattle and requested transfer to a less hostile and more accommodating position within Tulane. Rec. Doc. 9. However, Mr. Wattle denied her request and told plaintiff she would have to “work it out” in her current employment position. Id. Thereafter, plaintiff prepared a list of requested disability accommodations along with her allegations of harassment, and delivered it to Tulane's Clinic Manager, Bess Hart, and Program Manager, Michael Dyer. Upon receiving plaintiff's accommodation request, Tulane responded the same day with specific accommodation suggestions, which plaintiff accepted. Id.

On or about September 30, 2019, plaintiff alleges Tulane IT Manager, Troy Smith loudly criticized her for not being sufficiently able to use or repair her work computer. Rec. Doc. 9. Soon thereafter, defendants Dillon and Smith allegedly entered plaintiff's workspace and inappropriately invaded her body space, “clicking ink pens behind her and close to her, ” causing the plaintiff to become more upset. Id. Plaintiff asserts Dillon and Smith told her that “she was only imagining their harassment of her” and that plaintiff was “a psychotic.” Id. Consequently, plaintiff alleges she suffered a mental breakdown at Tulane, resulting in Tulane immediately telling her to leave the workplace. Id. Plaintiff asserts the removal from the workplace and refusal to allow her to resume work constitute constructive termination of her employment. Id.

On or about September 29, 2020, plaintiff filed a petition for damages in the Civil District Court for the Parish of Orleans. Rec. Doc. 1-2. That Court dismissed all claims against the individual Tulane defendants and all state law employment discrimination claims against Tulane. Id.; see also Rec. Doc. 10-2 (state court Judgment). The state court then ordered plaintiff to file an amended petition in accordance with Louisiana Code of Civil Procedure articles 863 and 891 relative to remaining claims against Defendant Tulane. Rec. Doc. 10.

On or about July 28, 2021, plaintiff filed a supplemental and amending petition for damages in Civil District Court, re-pleading her claims against all the individual defendants and asserting federal employment discrimination claims against Tulane. Rec. Doc. 1-2. On or about August 19, 2021, defendants removed the matter to this Court based on federal question jurisdiction. Rec. Doc. 1 (Notice of Removal). Subsequently, on September 8, 2021, plaintiff sought leave to file a second supplemental and amending complaint, re-alleging all claims against the individual Tulane defendants and Tulane. Rec. Doc. 7.

Specifically, plaintiff alleges claims against Tulane for wrongful termination, vicarious liability for employees' tortious conduct, employment discrimination, failure to accommodate under Section 504 of the Rehabilitation Act, disability discrimination, negligence, false arrest, defamation, and intentional infliction of emotional distress. Rec. Doc. 9. (Second Supplemental and Amending Petition). Against the individual Tulane defendants, plaintiff alleges claims for intentional infliction of emotional distress, unspecified “Louisiana tort law violations, ” and failure to accommodate under Section 504 of the Rehabilitation Act. Rec. Doc. 9, p. 6.

On or about October 4, 2021, defendants filed a motion to dismiss, seeking to dismiss all claims against the individual Tulane defendants and Tulane sounding in tort and wrongful termination. Rec. Doc. 10. However, defendants' motion did not address plaintiff's claims against defendants under Section 504 of the Rehabilitation Act for failure to accommodate. See Id. On or about December 6, 2021, plaintiff filed a memorandum in opposition to defendants' motion to dismiss. Rec. Doc. 28. Plaintiff did not address the arguments defendants posed; but instead, merely stated there is corroborating evidence of what she alleged in her petition. Id.

II. LAW AND ANALYSIS

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). However, such a motion is “viewed with disfavor and is rarely granted.” Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for 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 (2008)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 556. A claim is facially plausible when the plaintiff has pleaded facts that allow the court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 570.

On a motion to dismiss, asserted claims are liberally construed in favor of the claimant, and all facts pleaded are taken as true. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007). Although a court required to accept all “well-pleaded facts” as true, it is not required to accept legal conclusions as true. Iqbal, 556 U.S. at 677-78. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” will not suffice. Id. at 678. If factual allegations are insufficient to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an “insuperable” bar to relief, the claim must be dismissed. Moore v. Metro. Human Serv. Dep't, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, C.J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)); Carbe v. Lappin, 492 F.3d 325, 328 n. 9 (5th Cir. 2007).

When a party is proceeding pro se, their filings are to be “liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The Court should “examine all of [the] complaint, including attachments.” Clark v. Huntleigh Corp., 119 Fed.Appx. 666, 667 (5th Cir. 2005). Nevertheless, a pro se complaint must still “set forth facts giving rise to a claim on which relief may be granted.” Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993).

B. Plaintiff's Failure to Address Tulane's Opposition Arguments

The Fifth Circuit has noted that a plaintiff's failure to defend her claims beyond her complaint constitutes abandonment of those claims. Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006); Heisler v. Kean Miller, LLP, No. CV 21-724, 2021 WL 3852261 (E.D. La. Aug. 27, 2021). District courts within the Fifth Circuit have expressly applied this abandonment rationale in...