United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
date, the Court considered Defendant's Partial Rule 12
Motion to Dismiss Plaintiff's First Amended Complaint
(docket no. 17).
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.
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).
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.
Rehabilitation Act - receipt of federal funding
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).
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.
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
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
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. ...