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Mesa v. City of San Antonio

United States District Court, W.D. Texas, San Antonio Division

November 29, 2017

ABEL MESA, Plaintiff,
v.
CITY OF SAN ANTONIO, d/b/a CPS ENERGY, Defendant.

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

         On this date, the Court considered Defendant's Partial Rule 12 Motion to Dismiss Plaintiff's First Amended Complaint (docket no. 17).

         I. Background

         Plaintiff was hired by CPS Energy in 1990 and is now over age 40. In 2013, his wife was diagnosed with cancer, and he availed himself of FMLA leave to care for his wife. On September 12, 2016, he sustained an on-the-job injury to his arm and shoulder and sought workers' compensation benefits. Plaintiff had a doctor's visit with Texas Med Clinic on September 13 and scheduled a follow-up on September 16. Plaintiff alleges that “[o]n the 16th Mr. Mesa was contacted by Broadspire, Defendant's Third Party FMLA administrator”; “Mesa was seen at Nova clinic and received a release allowing him to return to work without restrictions on September 20, 2016”; “He returned on the 20th Plaintiff gave his return to work forms and gave them to Vernon King, his supervisor. Mesa worked that day without incident.”; “On September 21, 2016, Mr. Mesa was escorted off the job and had his badge taken away. He was told not to return to work until he heard back from Kevin Drenan, because there was a problem with the paperwork.” Plaintiff further alleges that he did not get a call until the 28th, when he was told to go to Concentra clinic on Thursday or Friday to obtain a Fitness for Duty form, and Mesa said he would go on Friday. He alleges that when he went on Friday, he was told they could not see him and that he needed to call Toni in HR. Plaintiff alleges that Toni then told him there had been an appointment for him to go to Concentra on Thursday the 28th, and was later told they decided to have a meeting with him at CPS's downtown office. On October 3, he was informed that because he had not gone to the September 28 medical appointment, he was being put on leave and would be separated from CPS on December 1, and would be immediately taken off payroll. Defendant asserts that Plaintiff had previously elected voluntary retirement beginning December 1.

         The First Amended Complaint asserts claims under the Rehabilitation Act, the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and the Family and Medical Leave Act (“FMLA”). Defendant filed a partial answer and a partial motion to dismiss. The motion seeks dismissal of the Rehabilitation Act and ADA claims under Rule 12(b)(6).

         II. Analysis

         If a complaint fails to state a claim upon which relief can be granted, a court is entitled to dismiss the complaint as a matter of law. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss under 12(b)(6), all factual allegations from the complaint should be taken as true. Fernandez-Montez v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993). Additionally, the facts are construed favorably to the plaintiff. Id. Courts may look only to the pleadings in determining whether a plaintiff has adequately stated a claim; consideration of information outside the pleadings converts the motion to one for summary judgment. Fed.R.Civ.P. 12(d). To survive a 12(b)(6) motion, a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 5551964 (2007). Factual allegations must be sufficient to “raise a right to relief above the speculative level.” Id. A well-pleaded complaint can survive a motion to dismiss even if actual proof of the facts alleged is “improbable.” Id. 556.

         A. Rehabilitation Act - receipt of federal funding

         The Rehabilitation Act prohibits discrimination on the basis of disability by recipients of federal funds. EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 614 n.5 (5th Cir. 2009). It provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be . . . subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). Under the McDonnell Douglas burden-shifting framework, a plaintiff must first establish a prima facie case of discrimination, including that the plaintiff (1) is an individual with a disability, (2) who is otherwise qualified for the position, (3) who worked for a program or activity receiving federal financial assistance, and (4) was discriminated against solely by reason of his or her disability. Cohen v. Univ. of Tex. Health Science Ctr., 557 F. App'x 273, 277-78 (5th Cir. 2014).

         Defendant contends that Plaintiff's Rehabilitation Act claims must be dismissed because he failed to plead facts that demonstrate that the Act applies to CPS Energy as a whole, much less that Mesa's work at CPS Energy causes the Rehabilitation Act to apply to him in particular. Defendant asserts that, “under current Fifth Circuit precedent, to state a claim under the Rehabilitation Act, a plaintiff must allege that he personally worked on a program or activity that received grants or other financial assistance from the federal government.” Motion at 3.

         The Court finds that Plaintiff's allegations are sufficient. In Taylor v. City of Shreveport, 798 F.3d 276, 283 (5th Cir. 2015), the Fifth Circuit held that, to state a § 504 claim, a plaintiff must allege that the specific program or activity with which he or she was involved receives or directly benefits from federal financial assistance. But it held sufficient an allegation that “the City receives federal funds for the police department.” It noted that the police department was a “program or activity” as defined by the Rehabilitation Act, which includes “a department, agency, special purpose district, or other instrumentality of a State or of a local government.” 29 U.S.C. § 794(b)(1)(A). Thus, allegations that the program or activity receives federal funds appear to be sufficient to state a claim.

         Plaintiff's First Amended Complaint alleges that “Defendant received federal funds and utilized them as part of its operations.” First Am. Compl. ¶ 9. And Defendant is “the City of San Antonio acting by and through its agent, City Public Service Board d/b/a CPS Energy.” Construed liberally, this is sufficient to allege that CPS Energy receives federal funds, which is sufficient to state a claim. Although Defendant has attached an affidavit to its motion to dismiss, the Court's review is limited to the pleadings, and the Court therefore cannot consider the affidavit without converting the motion to a motion for summary judgment, which it declines to do. The motion to dismiss the Rehabilitation Act claim on this basis is therefore denied.

         B. Rehabilitation Act and ADA - disability

          Plaintiff alleges claims under the ADA and Rehabilitation Act based on (1) his own actual disability, (2) being perceived or regarded as disabled, and (3) his association with his disabled wife. Specifically, Plaintiff alleges that he had a temporarily disabling condition that affected his ability to perform the major life activities of overhead reaching and climbing, that Defendant perceived him as disabled, and that Defendant took adverse actions against him because of his association with his wife, who had the disability of cancer. Defendant contends that Plaintiff fails to state a claim under the first two theories. ...


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