Opinion
CIVIL ACTION NO. 02-3206, c/w 02-3396 03-939, SECTION "M" (3)
November 28, 2003
ORDER AND REASONS
Before the Court are Rule 12(b)(6) motions to dismiss filed by the defendants in the captioned consolidated proceedings, to wit: (1) New Orleans Metal Trades Council's Motion to Dismiss for Failure to State a Claim filed in Case No. 02-3396 [Rec. Doc. No. 33]; (2) Boilermakers Local 1814 Motion to Dismiss adopting the New Orleans Metal Trades Council's Motion [Rec. Doc. No. 52]; and (3) Northrop Grumman's Motion to Dismiss for Failure to State a Claim filed in Case No. 02-3206 and its clone companion, Case No. 03-939 [Rec. Doc. No. 34]. Additionally, the plaintiff's motions for jury trial on all issues and for injunction were set for hearing and are, together with the motions to dismiss, before the undersigned Magistrate Judge for determination pursuant to the parties consent in accordance with 28 U.S.C. § 636(c) . A briefing schedule issued regarding the aforesaid motions. The matter was the subject of a Spears and oral hearing on the aforesaid motions conducted by the undersigned Magistrate Judge on Wednesday, October 29, 2003. The Court, having now considered the allegations of the plaintiff as amended, the argument and written submissions of the parties to date, the record, and the applicable law, GRANTS the New Orleans Trade Metal Council's, Boilermakers Local 1814's, and the Northrop Grumman's Motions to Dismiss for the following reasons. Because of the aforesaid ruling, the Court need not address plaintiff's motions for injunction or for jury trial on all issues, except to say that they are DISMISSED AS MOOT.
See Plaintiff's Motion for Jury Trial and Ex-Parte Motion for Injunction to Stop Communications with Plaintiff's Physicians [Rec. Doc. Nos. 61 and 62].
See Consent to Proceed [Rec. Doc. Nos. 17, 35, 37]
See Minute Entry dated October 3, 2003 [Rec. Doc. No. 60].
I. PROCEDURAL AND FACTUAL BACKGROUND 1. The Pleadings
At issue in these consolidated proceedings are the plaintiff's Complaints and/or Amended Complaints filed in the captioned consolidated cases. On November 15, 2002, plaintiff filed his original complaint against defendant, Northrop Grumman Ship Systems, Inc., regarding an incident which occurred on or about October 8, 2001 concerning his former employer's alleged failure to accommodate him in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. and for alleged breach of the collective bargaining agreement. Additionally, via Amended Complaint, plaintiff alleges that Northrop Grumman violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., regarding incidents which occurred on or about March 7, 2002 and thereafter, for failure to "accommodate him" and for terminating him when he failed to return because of lack of transportation. Plaintiff also claims that Northrop Grumman is liable for violations of the Contract Disputes Act and for benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA).
See Complaint filed November 15, 2002 [Rec. Doc. No. 3/Case No. 02-3206]. See also Plaintiff's Amended Complaint filed May 19, 2003 [Rec. Doc. No. 2 I/Case No. 02-3206]; Plaintiff's Complaint filed April 4, 2003 [Rec. Doc. No. 21/Clone Case No. 03-939].
New Orleans Metal Trades Council and Boilermakers Local 1814 (collectively referred to hereinafter as "the Union") were named defendant in the consolidated Civil Action No. 02-3396. On November 18, 2002, David Walter Acosta ("Acosta"), filed the aforesaid lawsuit against NOMTC and later added the Boilermakers Local 1814, claiming that the Union defendants failed to represent him relative to his suspension from Northrop Grumman on or about October 8, 2001 and failed to assist him in his later attempts to return to work in March, 2002. As against the Union defendants, the plaintiff has also attempted to state claims for breach of the collective bargaining agreement and violation of the Contract Disputes Act, inter alia.
See Plaintiff's Original Complaint against the New Orleans Metal Trades Council filed November 18, 2002 [Rec. Doc. No. I/Case No. 02-3396]. See also Amended Complaint filed April 1, 2003 (adding Boilermakers Local 1814 as a party defendant) [Rec. Doc. No. 10/Case No. 02-3396]; Plaintiff's [Second] Amended Complaint filed May 13, 2003 [Rec. Doc. No. 16/CaseNo. 02-3396].
In summary, plaintiff seeks damages and has attempted to state claims in his original and amended complaints for breach of the collective bargaining agreement pursuant to state law, violations of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), violations of the Contract Disputes Act, 4 U.S.C. § 601, for benefits under the Longshore and Harbor Workers Compensation Act ("LHWCA"), 33 U.S.C. § 903, et seq., and "disability discrimination" pursuant to Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.
2. Factual Background Viewed in a Light Most Favorable to Plaintiff
Excluding the mere legal conclusions asserted by the plaintiff that defendants are liable pursuant to the ADA, the Contract Disputes Act and the LHWCA, inter alia, the facts set forth in the plaintiff's amended complaint, which the Court must accept as true for purposes of these motions, are as follows. Plaintiff was employed by Northrop Grumman from October 28, 1994 through September 6, 2002. He held the position of electrical layout fitter from October 28, 1994 though August 28, 2000, and "grinder" from August 28, 2000 though September 6, 2002.On October 7, 2001, the plaintiff was working as a metal grinder in the wing tank compartment of a vessel in drydock on the premises of Northrop Grumman. Transit to the company restroom facilities entailed climbing out of the wing tank through five (5) compartments on the vessel, down a ladder and walking two blocks. Plaintiff was working on the vessel along with several women. He had been alone in the wing tank compartment for two hours before the foreman entered on the aforesaid date and found urine in a bottle.
On or about October 8, 2001, a written warning notice was issued by Northrop Grumman for "immoral, indecent or unsanitary conduct on company premises" after he urinated in a bottle in his work area instead of using a restroom. This incident allegedly occurred because he had Type II Diabetes. After Acosta informed his employer that he had Type II diabetes, his "suspension was lifted" on October 12, 2001 and he was instructed to return to work. Because he was under a physician's care, he could not return immediately and Acosta informed his supervisor, Neil Adams, accordingly. On November 19, 2001, Acosta received a release from his doctor. Plaintiff provided Northrop Grumman with the release and he was permitted to resume work at the shipyard facility.
See Plaintiffs Amended Complaint at pp. 2-4; see also Warning and Suspension Notice dated October 8, 2001 [Exhibit "2" to Northrop Grumman's Motion to Dismiss].
See Amended Complaint at pp. 4-6.
Id. at p. 10. See also Warning and Suspension Notice marked rescinded with the date of October 12, 2001 [Exhibit "2" to Northrop Grumman's Motion to Dismiss].
See Plaintiff's Amended Complaint at p. 10.
Id. at p. 11.
See id. at pp. 11-12.
In February 2002, plaintiff began experiencing dizziness while climbing. Acosta's physician diagnosed "dizziness" and revised his work restrictions to include no climbing. According to the plaintiff, Northrop Grumman would not permit him to work because of the restriction and stated that it had no jobs available to him that would not require climbing of ladders on a regular basis.
Id. at p. 14.
See Plaintiff's Amended Complaint at p. 14. See also Physician's Medical Excuses dated February 2, 2002 and March 13, 2002 [Exhibits "5" and "6" to Northrop Grumman's Motion to Dismiss]; ALJ Lisa Dabreu's Decision dated February 28, 2003 (noting that the plaintiff has been "disabled" since February 28, 2003) [Plaintiff's Exhibit "2"]; Medical Center of Louisiana at New Orleans Rehabilitation Services Out Patient Progress Report dated December 11, 2002 (noting diagnoses of "vertigo, neuropathy," stating that the plaintiff is a "fall risk," and ordering him a standard walker to assist with mobility) [Plaintiff's Exhibit "11"] and Avondale Medical Department Progress Note dated February 8, 2002 (noting plaintiff presented a Longform Listing Restriction of climbing due to dizziness [Plaintiff's Exhibit "8"].
See Plaintiff's Amended Complaint at p. 15.
On March 18, 2002, Acosta filed a Title II application for Social Security disability insurance benefits, alleging disability since October 9, 2001. The alleged onset date of "disability" was later amended to February, 2002. Pursuant to a hearing eleven months later, on January 21, 2003, Acosta was awarded Social Security disability insurance benefits and a period of "disability," commencing February 28, 2002 .
See ALJ Dabreu's February 28, 2003 Decision [Exhibit "2" to Plaintiff's Opposition to Northrop Grumman's Motion to Dismiss].
Plaintiff filed his first EEOC Complaint against Northrop Grumman on May 20, 2002, alleging disability discrimination, regarding the incident of his one week suspension on or about October 8, 2001. Plaintiff also filed an EEOC Complaint against New Orleans Metal Trades Council on May 20, 2002, claiming disability discrimination because the Union's allegedly failed to represent him and file grievances regarding unfair discriminatory treatment between October, 2001 and May, 2002.
See EEOC Complaint of David W. Acosta (Charge No. 270A201212), dated May 20, 2002 [Northrop Grumman's Exhibit "9" and Plaintiff's Exhibit "12" in globo].
See EEOC Complaint of David W. Acosta (Charge No. 270A201214), dated May 20, 2002 [Plaintiff's Exhibit "2" to his Answer to the New Orleans Metals Trade Council's Motion to Dismiss].
Plaintiff had also filed a claim with the NLRB charging that Local 1814 unlawfully failed and/or refused to represent him regarding his October 8, 2001 suspension and to assist him in his efforts to obtain transportation so that he could return to work. The NLRB charge was dismissed on June 5, 2002 by Acting Regional Director Paulsen, who noted that the Union reasonably concluded that there was no basis upon which to file a grievance, because (1) the suspension was rescinded within a week and (2) the Union attempted to help the plaintiff find transportation.
See Plaintiff's Amended Complaint at p. 20; Correspondence of James G. Paulsen, Acting Regional Director of the NLRB, dated June 5, 2002 [NOMTCs Exhibit "1"].
On December 30, 2002, the plaintiff filed an EEOC Complaint against Northrop Grumman, claiming disability discrimination ( i.e., that he was discharged from his position as a Grinder because he failed to return to work following a long term disability leave of absence, which lasted from February of 2002 to July of 2002).
See EEOC Complaint of David W. Acosta dated December 30, 2002 [Exhibit "14" to Northrop Grumman's Motion to Dismiss].
In June of 2002, while the plaintiff's' application for disability benefits was pending, Northrop Grumman notified Acosta that it would attempt to make any "reasonable accommodation" that would allow him to perform the essential functions of his job. According to the plaintiff, during the summer of 2002, he had informed Northrop Grumman that he was willing to return to work, but that he had "lost [his] car because [he] could not pay for it." The plaintiff did not report to work on a vessel for the entire summer and was discharged for abandoning his job in September of 2002.
See Plaintiff's Amended Complaint at pp. 19-20; Correspondence of James G. Paulsen, Acting Regional Director of the NLRB dated June 5, 2002 (noting that the Union offered to contact the Employer regarding return to work on a light duty assignment, but that Acosta refused the offer because of continuing problems with dizziness and lack of any transportation) [Northrop Grumman's Exhibit "8"]; Correspondence of Human Resource Specialist Kristen B. Barney dated June 5, 2002 and June 20, 2002 [Northrop Grumman's Exhibits "11" and "12" and Plaintiff's Exhibit "4"].
See Amended Complaint at pp. 20-24. See also Physician's Statement, dated September 4, 2002 (noting diagnoses, including diabetes mellitus, vertigo, peripheral neuropathy, carpal tunnel syndrome, his treatment with diet and oral medication that may cause drowsiness and that the patient's prognosis was poor, release for work "n/a", no lifting, no climbing, only minimal walking with a cane, restrictions from dangerous equipment and power tools and restricted to sedentary work) [Plaintiff's Unnumbered Exhibit "10"].
See Amended Complaint at pp. 22-24; Separation Notice dated September 6, 2002 (noting his failure to return to work after an approved leave of absence) [Plaintiff's Exhibit "5"].
On December 30, 2002, Acosta filed his second EEOC Complaint against his former employer Northrop Grumman claiming disability discrimination. Therein, Acosta alleged that he was discharged from his position as a "grinder" because he failed to return to work following long term disability leave of absence which lasted from February, 2002 to July, 2002.
See EEOC Complaint of David W. Acosta (Charge No. 270A300544), dated December 30, 2002 [Northrop Grumman's Exhibit "14" and Plaintiff's Exhibit "12" in globo].
On February 28, 2003, Acosta's application for social security benefits was granted and the ALJ determined that the plaintiff was "disabled," not capable of even sedentary work and had not been since February of 2002.
See ALJ Lisa Dabreu's Decision dated February 28, 2003 [Plaintiff's Exhibit "2"].
II. CONTENTIONS OF THE PARTIES
Defendants submit that to the extent Acosta seeks to bring a state law breach of contract claim based upon his October 8, 2001 suspension, which was rescinded, and/or other alleged violations of the collective bargaining agreement ("CBA"), those state law claims are precluded by the CBA's finality clause and the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a). Defendants further aver that Acosta is not a government contractor and, thus, fails to state a claim under the Contract Disputes Act. Moreover, Northrop Grumman contends that Acosta has not experienced, nor has he alleged that he suffered any work-related injury and, in any event, any claims pursuant thereto are precluded for failure to adhere to the appropriate administrative procedures. Regarding his complaint of disability discrimination, there is no allegation or evidence that either Northrop Grumman or the Union was aware of any disabling condition of the plaintiff until after his October 8, 2001 suspension, which was rescinded within a week upon notification that the plaintiff had a medical condition that prevented him from utilizing facilities at a remote location from his work station on the vessel. Regarding events which occurred on March 7, 2002 and thereafter, the defendants contend that a "reasonable accommodation" was a virtual impossibility, in light of the plaintiff's allegations of total disability, even as to sedentary work, since February, 2002. Essentially, the defendant's argue that the plaintiff's adjudication of "disability" since February, 2002 obviates his ADA claims for failure to make a "reasonable accommodation."
For its part, the Union submits that to the extent that the plaintiff's complaint attempts to assert a cause of action under Section 301(a) of the LMRA, the statute of limitations for asserting such a claim has expired. Assuming arguendo that Acosta's claim is not time-barred, the Union avers that Acosta has failed to demonstrate either a breach of contract or the duty of fair representation. As previously mentioned, the Union adopts the arguments of Northrop Grumman that the plaintiff's ADA claim against it is baseless.
Acosta counters that this Court has jurisdiction over his claims against the Union pursuant to the LMRA. Turning to the defendants' argument that the Contract Disputes Act is inapplicable, the plaintiff submits that the Contracts Dispute Act governs his rights and the defendants' liabilities because Northrop Grumman has federal contracts and he was employed by that company. Plaintiff further contends that he did in fact timely file an EEOC complaint against the Union for disability discrimination in contravention of the ADA. Plaintiff admits that the Acting Regional Director of the National Labor Relations Board ("NLRB") noted that the Union reasonably concluded that there was no basis upon which to file a grievance, because the plaintiff's suspension had been rescinded. Plaintiff further acknowledged that the Union had assisted him in efforts to get transportation to the shipyard.
Acosta argues that he timely filed his complaints with the EEOC and that, based upon the Right to Sue letters issued by the EEOC, this Court has jurisdiction and should not dismiss his complaints against either Northrop Grumman or the Union. Regarding his ADA claim, the plaintiff argues that he filed complaints with the EEOC on May 20, 2002, when he became aware of the contract and his right to file the complaints. Acosta submits that he has a disability, within the meaning of the ADA, that affects a major life activity. He submits that he was declared totally disabled for a period beginning February 28, 2002, citing the February 28, 2003 determination of ALJ Lisa Dabreu. Most notably, Administrative Law Judge (ALJ) Lisa Dabreu concluded, based upon consideration of the entirety of his medical records and the plaintiff's sworn testimony, that the plaintiff's severe impairments, including uncontrolled diabetes mellitis Type II, hypertriglyceridemia, obesity, urinary incontinence, vertigo, peripheral neuropathy and severe left carpal tunnel syndrome, prevent him from performing either his past relevant work as a "grinder" or even sedentary work on a sustained basis. Turning to his claim for workers' compensation benefits, Acosta admits that he did not give notice of or even attempt to file a claim for worker's compensation benefits. Plaintiff avers that he did not even think of filing a claim for LHWCA benefits until March, 2003 ( i.e., after the onset of his complete and total disability). At the time of the oral hearing, the plaintiff tendered a letter to the Court dated May 15, 2003 from Claims Adjuster Ryan D. Downs regarding the worker's compensation claim he had filed apparently claiming that he had an accident on February 28, 2002. Nevertheless, even at the time of the October 29, 2003 Spears/oral hearing on the motions to dismiss, Acosta made no allegation regarding any work-related injury that occurred on or about February 28, 2002 or on any other date while employed by Northrop Grumman.
See Correspondence dated May 15, 2003 (noting "D/A 2/28/2002") [attached hereto and filed herewith].
III. APPLICABLE STANDARDS 1. Rule 12(b)(6) Standard
The Fed.R.Civ.P. 12(b)(6) standard is met if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." In Beanal v. Freeport-McMoran, Inc., the Fifth Circuit observed:
J.R. Striplin v. Jordan Production Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000) (internal quotations and citations omitted).
A motion to dismiss under Rule 12(b)(6) is rarely granted. The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint taken as true. The district court may not dismiss a complaint under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. This strict standard of review under Rule 12(b)(6) has been summarized as follows: The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.
Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999) (citations and quotation marks omitted). See also Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub now, Cloud v. United States, 536 U.S. 960 (2002); Lowrey v. Texas A M Univ. System, 117 F.3d 242, 247 (5th Cir. 1997); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
While viewed with disfavor, Rule 12(b)(6) dismissal may nevertheless be proper where the plaintiff can prove no set of facts entitling him to relief.
Ramming, 281 F.3d at 161.
Since federal courts simply require "notice pleading," the district court must construe the plaintiff's pleadings liberally. In the case at bar, plaintiff's thirty-one page amended pleading filed in these consolidated cases suffers from no lack of detail.
As previously stated, a court should consider only the pleadings when deciding a Rule 12(b)(6) motion to dismiss. When a court considers matters outside of the pleadings, Fed.R.Civ.P. 12(b) requires the court to treat the motion to dismiss as one for summary judgment and dispose of it as provided in Rule 56. Nevertheless, there are exceptions to this mandate and this case falls squarely into the exception discussed below.
The Court is not converting the motions to dismiss filed by the defendants to motions for summary judgment despite the submission of documents that are extraneous to the Complaints and Amended Complaints filed in the captioned consolidated proceedings. Plaintiff refers to all of these documents in his pleadings, including his physician's correspondence to Northrop Grumman, the collective bargaining agreement, his EEOC complaints, and correspondence from the NLRB's regional director, inter alia. The "Right to Sue" letters from the EEOC fulfill a condition precedent to the plaintiff's ADA claims. Moreover, the documents at issue were tendered by the plaintiff and the defendants and their authenticity is not controverted.
The operative exception that permits the Court to consider extraneous documents is that they were submitted by the parties and explicitly referred to by the plaintiff in his amended pleadings. Moreover, the documents are central to his claims. The Fifth Circuit has explicitly recognized that a court may consider documents attached not only to the pleadings, but to the motion to dismiss under rule 12(b)(6) . For this exception to apply, the documents must be referred to in the complaint and be integral and central to the plaintiff's claim.
See Sheppard v. Texas Department of Transportation, 158 F.R.D. 592, 596 (E. D. Tex. 1994).
See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).
Id. at 499 ( quoting Venture Assocs. v. Zenith Data Sys., 987 F.2d 429, 431 (7th Cir. 1993)).
A main factor in directing courts to look solely toward the pleadings when deciding a rule 12(b)(6) motion is the concern that statements outside of the complaint will not provide adequate notice to a plaintiff. Where, as here, the plaintiff has actual notice and has relied upon these documents in framing the complaint, the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.
See Sheppard, 158 F.R.D. at 596 n. 7.
See id. ( citing Cortec Indus. v. Sum Holding L. P., 949 F.2d 42, 43 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992)); Franks v. Prudential Health Care Plan, Inc., 164 F. Supp.2d 865, 872 n. 4(W. D.Tex. 2001).
2. 28 U.S.C. § 1915's Standard
An in forma pauperis complaint may be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) if it has no arguable basis in fact or law. Both aspects are implicated by defendants' Motions to Dismiss. In particular, the defendants highlight the dichotomy between the plaintiff's claims herein ( i.e., for failure to make a "reasonable accommodation" and/or to represent him in his efforts to be reappointed to work), and his allegations in his Social Security application for benefits ( i.e., that he was completely and totally disabled from performing any work originally alleging an onset date of October, 2001, which Acosta later revised to February, 2002).A finding of "factual frivolousness" is appropriate when the facts alleged rise to the level of the irrational, fanciful or wholly incredible. "A complaint lacks an arguable basis in law if it is based undisputably on a meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist." 28 U.S.C. § 1915 provides in pertinent part:
See Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Davis, 157 F.3d at 1005 ( quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)).
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time the court determines that —
(B) the action or appeal —
(i) is frivolous or malicious; [or]
(ii) fails to state a claim for which relief may be granted. . . .
28 U.S.C. § 1915(e)(2)(B)(i-ii).
The Court addresses the defendants' motions to dismiss together because the plaintiff's complaints against Northrop Grumman and the Union are inextricably interdependent and the defendants make essentially the same arguments in their respective motions to dismiss.
IV. ANALYSIS 1. Americans with Disabilities Act ("ADA")
To present a prima facie case of discrimination under the ADA, Acosta must show that "[he] is a qualified individual with a disability, and that the negative employment action occurred because of the disability." A "qualified individual with a disability" is defined in the ADA as someone who has a disability but who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."
See Holtzclaw v. DSC Communications, 255 F.3d 254, 259 (5th Cir. 2001).
42 U.S.C. § 12111(8) (emphasis added); Sherrod v. Am. Airlines. Inc., 132 F.3d 1112, 1119 (5th Cir. 1998); accord Giles v. Gen. Elec. Co., 245 F.3d 474, 483 (5th Cir. 2001).
The ADA does not require an employer to relieve an employee of the essential functions of the job, modify those duties, reassign existing employees to perform those duties, or hire new employees to do so. The Fifth Circuit has observed that, if the only successful accommodation is for the disabled individual not to perform the essential functions of the job, then the plaintiff cannot be reasonably accommodated.
Burch v. City of Nacodoches, 174 F.3d 615, 620-21 (5th Cir. 1999).
ln Robertson v. Neuromedical Center, 161 F.3d 292, 295 (5th Cir.) ( citing Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 709 (5th Cir. 1997)), cert. denied, 119 S.Ct. 1575 (1999).
Acosta was declared completely disabled and unable to return to even sedentary work for a period commencing in February, 2002. Moreover, plaintiff alleges in his amended complaint that he could not perform the essential functions of his job, even with an accommodation. The law in this area is crystal clear: an otherwise qualified person is "one who is able to meet all of the program's requirements in spite of his handicap." To avoid dismissal, Acosta must show that (1) he could perform the essential functions of the job in spite of his disability, or (2) that a reasonable accommodation of his disability would have enabled him to perform the essential functions of the job.
See 42 U.S.C. § 12111(8).
Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir. 1996) ( per curiam) (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993)).
See id..
Accepting the plaintiff's factual allegations as true, Acosta could not meet the essential physical demands of his job as a grinder operating machinery "in spite of his disability." Indeed, given the physical demands of being a grinder, the fact that his treating physician indicated that he was permanently disqualified from performing those duties and the allegations of plaintiff's Amended Complaint, it is clear and uncontroverted that Acosta cannot meet the first prong of the Turco test.
Curiously, the plaintiff presents this Court with the final decision of the Social Security Administration, finding that he is entitled to a period of disability commencing in February, 2002. Essentially, plaintiff has established via Amended Complaint, together with attachments, that he was completely "disabled" from performing any type of work (whether sedentary, light, medium or heavy) beginning February 28, 2002 ( i.e., before his employer Northrop Grumman allegedly refused to accommodate his impairments on or about March 7, 2002). It is also undisputed that, either on or before the October 8, 2001 suspension which was rescinded within a week, Northrop Grumman had not been apprised of the plaintiff's diabetic condition. Indeed, it was the incident in question that brought the plaintiff's physical limitations to the fore, such that his condition was diagnosed and his suspension was lifted. It is undisputed that thereafter and pursuant to appropriate medical treatment for his condition, plaintiff's physician lifted his work restrictions and Northrop Grumman promptly put the plaintiff back to work.
Regarding his absence from work for the period beginning in February, 2002, plaintiff has been adjudicated by the Commissioner of Social Security to be "disabled" from any work for a period commencing in February, 2002. ALJ Dabreu determined that, commencing in February, 2002 and thereafter, plaintiff was and is incapable of performing even sedentary work on a sustained basis due to his severe impairments. The ALJ's decision was based upon the plaintiff's medical records and his sworn testimony regarding permanent physical limitations which precluded him performing his job as "grinder" at Avondale Shipyard or any gainful employment on a sustained basis. It is noteworthy that, at the outset, plaintiff originally alleged a disability onset date of October, 2001, however, it was later revised to February, 2002.
See Decision of ALJ Lisa Dabreu dated February 28, 2003, at pp. 3-4 [Plaintiff's Exhibit "2"].
Id. at p. 1.
An ADA plaintiff who, in an application for disability benefits, asserts that he is unable to work must produce "an explanation of this apparent inconsistency" that is "sufficient" to defeat judgment on the issue of whether the plaintiff is a qualified individual with a disability.
See Holtzclaw, 255 F.3d at 259 ( citing Cleveland v. Policy Mgmt. Sys. Corp. 526 U.S. 795, 806(1999)).
Acosta offers no cogent explanation for the inconsistency of his sworn testimony in applying for and being awarded a period of disability and disability insurance benefits and his ADA claim ( i.e., that he is a qualified individual with a disability who could perform the essential functions of his past relevant work as a "grinder" with some accommodation). Both Cleveland and Holtzclaw, supra, teach that a plaintiff cannot change his story during litigation without a sufficient explanation for his inconsistent assertions. Plaintiff offers no sufficient explanation for the contradiction between his social security disability application and ADA claim.
Plaintiff has not and cannot set forth the necessary facts to establish a prima facie case of disability discrimination against his former employer Northrop Grumman. Plaintiff has been given the opportunity to do so on many occasions, including the Spears hearing, inter alia, conducted in connection with argument on the defendants' Motions to Dismiss. Even assuming arguendo LE the existence of a cognizable ADA disability that substantially affected a major life activity, plaintiff must show he could perform the essential functions of the job despite his "disability" or that a reasonable accommodation of his disability would have enabled him to perform the essential functions of his job. Accepting the allegations of his amended complaint as true — i.e., that his condition continued to get worse, he had to walk with a cane and would fall backward even if sitting for any length of time — Acosta admittedly could not perform the essential functions of either sedentary work or his position as a grinder. The Court observes that the EEOC dismissed the plaintiff's charge because Acosta could not establish that he was a "qualified individual with a disability." The operative facts alleged by the plaintiff are uncontroverted, to wit: (1) the "grinder" position previously held by the plaintiff is by no means sedentary; (2) essential functions require climbing into position and operating power tools to "grind" welds; (3) plaintiff was then incapable of performing essential functions and his condition only got progressively worse; and (4) plaintiff cannot perform even sedentary work without losing his balance and falling backwards. According to the Amended Complaint, plaintiff's physical limitations, which precluded the performance of essential functions as a grinder, commenced in earnest at the latest by February, 2002. Plaintiff's allegations that his physical limitations only got worse as time went on nullify his claim of disability discrimination pursuant to the ADA.
Burch, 174 F.3d at 619.
See Plaintiff's Amended Complaint at pp. 23-24 [Rec. Doc. No. 21]. See also Medical Center of Louisiana at New Orleans Rehabilitation Services Out Patient Progress Report dated December 11, 2002 (noting diagnoses of "vertigo, neuropathy," stating that the plaintiff is a "fall risk," and ordering him a standard walker to assist with mobility) [ Plaintiff's Exhibit"11"]; Avondale Medical Department Progress Note dated February 8, 2002 (noting plaintiff presented a Longform Listing Restriction of climbing due to dizziness [ Plaintiff's Exhibit "8"]; Neurology Follow-Up Notes of Dr. Michael Wilensky, dated July 16, 2002 (noting dizziness whether walking or sitting and intermittent numbness/tingling in feet, and stiffness in hands) [ Plaintiff's Exhibit "9"]; Physician's Statement, dated September 4, 2002 (diagnosing diabetes mellitus, vertigo, peripheral neuropathy, carpal tunnel syndrome, prescribing treatment with diet and oral medication that may cause drowsiness and further stating that the patient's prognosis was poor, release for work "n/a", no lifting, no climbing, only minimal walking with a cane, restrictions from dangerous equipment and power tools) [ Plaintiff's Unnumbered Exhibit "10"].
Because the plaintiff cannot establish that essential element of his ADA claim, Acosta cannot prevail on his claim of disability discrimination. Moreover, the Amended Complaint does not allege any conduct by the Union entities which is violative of the Americans with Disabilities Act. His allegations that the Union wrongfully refused to assist in procuring employment either at Northrop Grumman's facility or with any other company pale in comparison to allegations set forth in his Title II application for Social Security benefits. Accordingly, the plaintiff has failed to state a claim against either his former employer or the Union for disability discrimination.
2. The Contract Disputes Act
The Contract Disputes Act of 1978, 41 U.S.C. § 601-13, provides that: "If a contractor is unable to support any part of his claim and it is determined that such inability is attributable to misrepresentation of fact or fraud on the part of the contractor, he shall be liable to the Government for an amount equal to such unsupported part of the claim in addition to all costs to the Government attributable to the cost of reviewing said part of his claim. Liability under this [section] shall be determined within six years of the commission of such misrepresentation of fact or fraud." "To recover under the [Contract Disputes Act], the government is required to establish that the contractor made false or fraudulent statements in its submitted claim with an intent to deceive or mislead the government." There are very few cases applying 41 U.S.C. § 604. The plaintiff has failed cite so much as one case applying the Contracts Dispute Act to a claim that involves solely private litigants.
41 U.S.C. § 604.
Commercial Contractors, Inc. v. United States, 154 F.3d 1357, 1362 (Fed. Cir. 1998).
The contract at issue in this case involves only private parties; therefore, the Contracts Disputes Act is inapplicable. The plaintiff, who is admittedly not a government contractor states no cause of action against either Northrop Grumman or the Union entities under the Contracts Disputes Act.
See Fireman's Fund Insurance Co. v. England 313 F.3d 1344, 1351 (Fed. Cir. 2002); Finegold, Alexander Associates, Inc. v. Setty Associates, Ltd., 81 F.3d 206, 317 (D.C. Cir. 1996).
3. Benefits under the LHWCA
The Longshore and Harbor Workers' Compensation Act ("LHWCA") provides for compensation of workers injured or killed while employed on the navigable waters or adjoining, shipping-related land areas of the United States. With the exception of those duties imposed by §§ 919(d), 921(b), and 941, the Secretary of Labor has delegated all responsibilities of the Department with respect to administration of the LHWCA to the Director of the Office of Workers' Compensation Programs (OWCP).
20 C.F.R. § 701.201 and 701.202 (1994); 52 Fed. Reg. 48466 (1987).
The LHWCA is a no-fault compensation scheme, in return for which employers are immune from tort liability. The basic structure of the LHWCA provides that the employer and its insurance carrier are responsible for the claimant's compensation benefits. The insurance relationship under the LHWCA is closely regulated for the security, prompt provision, and convenient supervision of payments of benefits to the worker.
See 33 U.S.C. § 932, 935-936. See also § 914(a), (b) (stating payments must be paid promptly, periodically, and directly to the claimant). See generally 20 C.F.R. pt. 703 (2001).
The convenient and effective administration of the LHWCA intended by the terms of that Act and its implementing regulations depends in significant measure on the prompt, accurate identification of the liable employer and its carrier to whom the compensation system is entitled to look for the timely and continuing payment of all benefits. A worker seeking compensation under the Act must file a claim with an OWCP district director. If the district director cannot resolve the claim informally, it is referred to an ALT authorized to issue a compensation order. The ALJ's decision is reviewable by the Benefits Review Board, whose members are appointed by the Secretary. The Board's decision is in turn appealable to a United States Court of Appeals, at the instance of "[a]ny person adversely affected or aggrieved by" the Board's order.
See Rodriguez v. Compass Shipping Co., Ltd., 451 U.S. 596, 612 (1981).
33 U.S.C. § 919(a); 20 C.F.R. § 701.301(a) and 702.105 (1994).
W. at § 702.316; 33 U.S.C. § 919(d).
Suffice it to say, questions as to whether an injury arose out of and in the course and scope of employment necessarily fall within the administrative tribunal's authority. Acosta neither claims a work-related injury nor filed a claim for compensation benefits under the Act. In any event, because the plaintiff has not followed the appropriate administrative procedures related to such claims, any claim he may have under the LHWCA is precluded. For the reasons set forth above, the plaintiff has failed to state a claim for benefits under the LHWCA
See Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 477 (1947).
4. Section 301 of the LMRA
Section 301 of the LMRA provides jurisdictional remedies for an individual employee to enforce rights and challenge violations of a labor contract between the employer and the union. Section 301 entirely displaces state law causes of action for violation of a collective bargaining agreement. When a state tort claim cannot be resolved without interpreting a provision of a collective bargaining agreement, the application of state law is preempted and federal law is applied.
Thomas v. LTV Corporation., 39 F.3d 611 (5th Cir. 1994) (citing Landry v. Cooper T. Smith Stevedoring Co., 880 F.2d 846, 850 (5th Cir. 1989)).
See Lingle v. Norge Division of Magic Chef, 486 U.S. 399, 405-406 (1988); Medrano v. Excel Corp., 985 F.2d 230, 232 (5th Cir.) ( citing United Steel Workers v. Rawson, 495 U.S. 362, 368 (1990), cert. denied, 510 U.S. 822 (1993)).
Norge, supra.
The inquiry does not end, however, with the determination that the plaintiff's state law claims are preempted by § 301 of the LMRA. Plaintiff's claims may be brought as a breach of a labor contract under § 301 provided that he has adequately stated a claim thereunder. Indeed, "when resolution of a state-law claim is substantially dependent upon an analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim or dismissed as preempted by federal labor-contract law."
Thomas 39 F.3d at 621-22.
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985); see also Reece v. Houston Lighting Power Co., 79 F.3d 485, 486 (5th Cir.), cert. denied, 519 U.S. 864 (1996).
To state a claim under § 301, plaintiff must demonstrate both that he has exhausted his contractual remedies provided for under the terms of the CBA and that the union breached its duty of fair representation during the grievance and arbitration proceedings. Suits under § 301 generally consist of two causes of action, to wit: (1) the allegation that the employer breached the collective-bargaining agreement; and (2) the allegation that the union breached its duty of fair representation. Whether the employee chooses to sue his employer, the Union, or both, the case to be proved is comprised of the same two elements aforestated.
DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 164-165 (1983).
Reed v. United Transportation Union, 488 U.S. 319, 329 (1989).
DelCostello, 462 U.S. at 165.
In DelCostello, the Supreme Court explained that the suit against the employer rests on § 301, since the employee is alleging breach of the collective bargaining agreement. The suit against the union is one for breach of the union's duty of fair representation, which is implied under the scheme of the National Labor Relations Act. However, these two claims are "inextricably interdependent," and together they are viewed as a "hybrid § 301/duty of fair representation suit." The hybrid suit is typically brought by an employee against both his employer and the union in order to set aside a final and binding determination of a grievance, arrived at through the collectively bargained method of resolving the grievance. It is, therefore, a direct challenge to the private settlement of disputes under the collective bargaining agreement. Another factor considered important in the Supreme Court's analysis in DelCostello is that a hybrid § 301/fair representation action yokes together interdependent claims that could only impractically be treated as governed by different statutes of limitations.
Id. at 164.
Daigle v. Gulf State Utilities Co., Local Union Number 2286, 794 F.2d 974, 977 (5th Cir.), cert. denied, 479 U.S. 1008 (1986).
United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66 (1981).
Id. at 66.
Relying on DelCostello, supra, the Union contends that plaintiff's claims are time-barred because he failed to file the instant lawsuit within the six-month statute of limitations period applicable to a "hybrid" § 301 breach of contract and union breach of duty of fair representation suit. Where the grievance and arbitration procedure is the exclusive and final remedy for claims, suits brought under § 301 are subject to a six-month statute of limitations. In Thomas, while holding that the petitioner's claims were time-barred, the Fifth Circuit commenced running the statute of limitations at the termination of the grievance proceeding.
See 29 U.S.C. § 160(b); DelCostello, 462 U.S. at 171.
Thomas, 39 F.3d at 622.
In the case at bar, Acosta contends that the New Orleans Metal Trades Council and Boilermakers Local 1814, which represent the employees of Northrop Grumman's Avondale Shipyard facility, were obligated to file a grievance over his suspension for urinating in a bottle. Acosta filed an unfair labor practice charge of that ilk with the NLRB and that charge was dismissed on June 5, 2002 by Acting Regional Director Paulsen. Admittedly, the recission of Acosta's suspension was successfully negotiated within a week. Assuming without deciding that the Union played no part in negotiating the recission, the suspension was in fact rescinded in short order. Within the passage of a few days, there was no part left for the Union to play,
representative or otherwise, with respect the October 8, 2001 incident. It is not disputed that his suspension in October of 2001 was lifted within a week ( i.e., October 11, 2001). Acosta's lawsuit against the New Orleans Metal Trades Council and Boilermakers Local 1814 was filed on November 18, 2002, well-over a year after Acosta's October 8, 2001 suspension was rescinded. However, the aforesaid lawsuit against the Union (Case No. 02-3396) was filed less than six months after the plaintiff's NLRB charge was dismissed on June 5, 2002.
Assuming arguendo that the plaintiff's claims against the Union defendants are not time-barred, the plaintiff fails to state a claim in any event. As to any obligation on the part of the Union to help Mr. Acosta find transportation to work, the plaintiff fails to point to the source of this alleged duty. In any event, Acosta admits that Boilermakers Local 1814 assisted in that effort during the summer of 2002. Indeed, the plaintiff's claims against New Orleans Trade Metal Counsel and Boilermakers Local 1814 with respect to Acosta's October, 2001 suspension and the Union's failure to file a grievance and/or assistance him in obtaining transportation to work in February, 2002, and thereafter regarding a "reasonable accommodation," are both factually and legally frivolous. As explained above, the plaintiff's ADA, Contract Dispute Act, and LHWCA claims against his former employer Northrop Grumman are either factually frivolous or legally frivolous or both and otherwise fail to state any cognizable claim.
See Amended Complaint at p. 20.
Plaintiff's attempt to foist blame in the Union camp for failing to help him prosecute claims which are either factually or legally frivolous and/or fail to state a claim or both will not be countenanced. The entire thrust of the amended complaint against the Union is the failure of those defendants to obtain employment for plaintiff with any company. Nevertheless, the plaintiff was declared disabled from any gainful employment pursuant to his application for Social Security disability benefits during the pertinent time frame ( i.e., since February, 2002 and thereafter).
IV. CONCLUSION
Plaintiff has failed to state a claim in any of one of the substantive counts of his complaints even as amended. Plaintiff's conclusory statements that the Union breached its duty of fair representation are insufficient. Moreover, plaintiff's allegations of fact claiming damages pursuant to the ADA, the LHWCA and the CD A demonstrates the circularity of the logic underpinning the pleadings in this case. Both the Union's and Northrop Grumman's Motions to Dismiss have merit. The plaintiff was previously given the opportunity to amend his complaint to state a claim. He did so by filing a thirty-one page complaint, which has failed to pass muster even as supplemented at the hearing. Plaintiff now attempts to allege "criminal charges" in this civil action and a claim pursuant to the Fair Labor Standards Act, without any further explanation. This Court is unable to conceive of any FLSA claim based upon the facts alleged, even as supplemented and amended. Moreover, it is for the United States Attorney, not a private civil litigant, to prosecute any Federal "criminal charges." Accordingly and for the reasons set forth hereinabove and pursuant to the October 29, 2003 hearing, the Court issues the following orders.
IT IS ORDERED that the defendants' Motions to Dismiss [Rec. Doc. Nos. 33, 34 and 52] are GRANTED and plaintiff's claims in all three of the captioned consolidated proceedings are dismissed in their entirety pursuant to Rule 12(b)(6), with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) and/or 28 U.S.C. § 1915, or both, each party to bear its own costs. A separate judgment will issue to that effect.
IT IS FURTHER ORDERED that the plaintiff's Motions for Jury Trial and for Injunctive Relief [Rec. Doc. Nos. 61 and 62] are DISMISSED AS MOOT.
New Orleans, Louisiana.