United States District Court, S.D. Texas, Houston Division
H. MILLER, UNITED STATES, DISTRICT JUDGE.
before the court is a motion to dismiss filed by defendant
City of Brookshire ("Brookshire"). Dkt. 25. After
considering the live complaint, the motion, the response, the
reply, and the applicable law, the court is of the opinion
that the motion to dismiss should be GRANTED IN PART
AND DENIED IN PART.
Darrell Branch's second amended complaint, Branch alleges
violations of the American with Disabilities Act
("ADA") by Brookshire and Brandal Jackson
("Chief Jackson"). Dkt. 24. According to the
allegations in the complaint, which the court accepts as true
for the purposes of this motion to dismiss, Kaiser
Aluminum & Chemical Sales, Inc. v. Avondale Shipyards,
Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), the facts are
was employed as a police officer by Brookshire for 18 years.
Dkt. 24 ¶ 6. As part of his employment, Branch's
duties included supervising other officers, creating work
schedules for officers, making copies of jail forms, and
answering calls. Id. ¶ 7. In August of 2013,
Branch began experiencing heart complications that required
him to take a leave of absence until November 2013.
Id. ¶¶ 8, 9. The heart complications arose
again in February 2014 causing Branch to seek treatment and
take another leave of absence until December 8, 2014.
Id. ¶¶ 10, 11. Branch's physician
provided the Brookshire Chief of Police, Chief Jackson, with
a return to work release that Chief Jackson found deficient.
Id. ¶ 12. Branch provided two more releases to
Chief Jackson in which Branch's physician stated that
Branch should perform desk duties for a period of three
months, at which time he would be re-evaluated. Id.
¶¶ 14, 15. On January 5, 2015, Chief Jackson
informed Branch that the police department could not
accommodate this request for desk duties, and Branch was
terminated from the Brookshire Police Department.
Id. ¶¶ 17, 18.
unsuccessfully appealing his termination through
Brookshire's appeals process, Branch filed a charge of
discrimination with the Equal Employment Opportunity
Commission ("EEOC"). Id. ¶¶ 22,
26. Branch is now suing both Brookshire and Chief Jackson
under the ADA for failure to accommodate his disability and
retaliation. Brookshire moves to dismiss the complaint for
failure to state a claim upon which relief can be granted.
8(a)(2) of the Federal Rules of Civil Procedure requires that
the pleading contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). A party against whom claims are
asserted may move to dismiss those claims when the nonmovant
has failed "to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). To survive a Rule
12(b)(6) motion to dismiss, a plaintiff must plead
'"enough facts to state a claim to relief that is
plausible on its face.'" In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955 (2007)). "Factual allegations must
be enough to raise a right to relief above the speculative
level, ... on the assumption that all the allegations in the
complaint are true (even if doubtful in fact)."
Twombly, 550 U.S. at 555 (citations omitted). While
the allegations need not be overly detailed, a plaintiffs
pleading must still provide the grounds of his entitlement to
relief, which "requires more than labels and
conclusions, " and "a formulaic recitation of the
elements of a cause of action will not do." Id.; see
also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937 (2009). "[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss." Blackburn
v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995).
Instead, "[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. Evaluating a motion to dismiss is a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
Id. at 679. 'Ultimately, the question for a
court to decide is whether the complaint states a valid claim
when viewed in the light most favorable to the
plaintiff." NuVasive, Inc. v. Renaissance Surgical
Ctr., 853 F.Supp.2d 654, 658 (S.D. Tex. 2012).
asserts two violations of the ADA by both Chief Jackson and
Brookshire in his second amended complaint, failure to
accommodate and retaliation. Dkt. 24. Brookshire moves to
dismiss the complaint. Dkt. 25. The court will consider
Brookshire's arguments in turn.
Claims Against Chief Jackson
Brookshire filed the motion to dismiss, the parties
stipulated that all parties other than Brookshire are
dismissed with prejudice. Dkt. 39. This stipulation
effectively serves as Branch's voluntary dismissal of
Chief Jackson with prejudice. Fed.R.Civ.P. 41(a)(1)(A)(ii).
Therefore, Branch's claims against Chief Jackson are
Claim Under Count 1-Failure to Accommodate
also argues that Branch's complaint lacks sufficient
facts to state a claim for failure to accommodate under the
ADA. Dkt. 25. Brookshire argues that Branch failed to allege
facts that a reasonable accommodation was available or that
Branch could perform his essential job functions with or
without an accommodation. Id. Branch responds that
he did allege he could ...