Opinions and documents
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TONDA LOWERY CIVIL ACTION
VERSUS
LOUISIANA DEPARTMENT OF HEALTH NO. 25-00927-BAJ-RLB
RULING AND ORDER
Before the Court is Defendant Louisiana Department of Health’s (“LDH”)
Motion to Dismiss Under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) (Doc. 21). Plaintiff opposes the Motion. (Doc. 25). Defendant filed a Reply
Brief. (Doc. 27). The Parties filed supplemental briefing. (Doc. 31; Doc. 33).
For the reasons stated herein, Defendant’s Motion (Doc. 21) is GRANTED IN
PART and DENIED IN PART.
I. BACKGROUND
This is an employment discrimination case. Plaintiff alleges the following facts,
which the Court accepts as true for purposes of the instant Motion to Dismiss.
Plaintiff worked as an LDH employee from April 1, 2007, until her wrongful
termination on October 30, 2024. (Doc. 1 ¶¶ 7–8). Plaintiff alleges that she is an
individual with a disability as defined by the Rehabilitation Act (the “RA”), suffering
from the following conditions:
(1) Meniere’s Disease, which substantially limits one or more major life
activities, including standing for extended periods, visual processing,
comprehension, cognitive clarity, and balance;
(2) Cervical Stenosis;
(3) Lumbar Spinal Stenosis;
(4) Degenerative Disc Disease;
(5) Three herniated discs, which cause severe pain and impact mobility; and
(6) An inflamed left shoulder, which causes functional limitations and required
medical documentation regarding needed accommodations.
(Id. ¶ 9 (citing 29 U.S.C. § 705(20)(B)). Plaintiff alleges that she had a record of such
disability and was regarded as disabled. (Doc. 1 ¶ 9).
Plaintiff alleges that LDH failed to accommodate her on the following
occasions:
(1) On September 18, 2023, Dr. Elliot T. Hardy issued a letter requesting
that Plaintiff be allowed to work from home while she underwent
further evaluation for dizziness. LDH allegedly ignored this request.
(2) On July 10, 2024, Dr. Kevin B. Riche issued a work excuse stating
that Plaintiff should receive extended deadlines due to shoulder pain
for the next two weeks. LDH allegedly did not comply with this
request.
(3) On August 9, 2024, Dr. Larry S. Bankston issued a note restricting
Plaintiff to desk duty with extra time for completing assignments.
LDH allegedly ignored this restriction and continued assigning
Plaintiff excessive work duties.
(4) Plaintiff requested flexible work hours and additional time to meet
deadlines due to health-related difficulties. LDH refused to
accommodate her.
(Id. ¶ 11).
On July 18, 2023, Plaintiff participated in a team meeting led by
Supervisor Octavius Youngblood where she was publicly questioned about her
availability and workload despite her known medical issues. (Id. ¶ 21). During the
meeting, Youngblood noted that assignments like Medicaid renewals were not
“evenly distributed” but declined to reassign any duties, stating she was “not
interested in taking work away from anyone.” (Id.). She later documented that
Plaintiff required “constant follow-up,” and was “delaying progress.” (Id.). Plaintiff
alleges that Youngblood’s remarks demonstrated retaliatory animus in response to
her protected activity and set the tone for future discriminatory treatment. (Id.).
In early January 2024, following internal feedback and purported complaints
regarding Plaintiff’s job performance directly related to her documented medical
limitations, Deputy Medicaid Director Charlene Julien began directing key decisions
that negatively impacted Plaintiff. (Id. ¶ 20). Julien instructed Summer Gauthier,
Medicaid Program Manager 1-B, and Dean Andrus, Medicaid Program Manager 2, to
implement changes that included workload adjustments, intensified monitoring, and
reassignment, without ever consulting Plaintiff or considering her medical
limitations. (Id.). Plaintiff alleges that these actions, taken after LDH had knowledge
of Plaintiff’s disabilities and accommodation requests, contributed to a hostile work
environment and supported a broader pattern of retaliation by LDH management.
(Id.).
Plaintiff filed a grievance naming both Julien and Youngblood; however, LDH
allegedly failed to conduct any meaningful investigation of the grievance. (Id.).
Instead, executive management ignored Plaintiff’s escalation attempts, responding
only with a dismissive email in February 2024. (Id.).
On May 22, 2024, Plaintiff met with Gauthier and Andrus and reiterated her
need for flexibility due to ongoing health issues. (Id. ¶ 12). Plaintiff raised alleged
prior mistreatment, including being told to “get out of bed and enter leave in LEO”
despite being physically incapacitated. (Id.). During the May 22 meeting, Plaintiff
requested telework and schedule adjustments—both permitted under LDH’s
Telework Policy—as reasonable accommodations. (Id.). Although both Gauthier and
Andrus acknowledged her concerns, LDH later denied those accommodations. (Id.).
LDH maintains a written Telework Policy, Policy No. 82.3, which allows for
situational telework as a form of reasonable accommodation for employees with
documented medical limitations. (Id. ¶ 13). Despite the Telework Policy and
Plaintiff’s formal written and verbal requests for situational telework supported by
medical documentation, LDH refused to initiate or explore such arrangements, in
violation of internal policy and federal accommodation requirements. (Id.).
From May through August 2024, Plaintiff reminded LDH management of her
medical limitations. (Id. ¶ 19). On June 4, 12, and 18, 2024, Plaintiff participated in
documented team meetings in which she reiterated her medical limitations and
sought “schedule flexibility and workload understanding” due to her documented
cervical spine, shoulder, and neurological impairments. (Id. ¶ 18). At each meeting,
her disclosures were acknowledged, yet LDH did not provide a single accommodation.
(Id.). Instead, LDH subjected Plaintiff to increased scrutiny and expectations that
disregarded her health needs. (Id.).
During a June 4, 2024 team meeting, Plaintiff reminded Gauthier and Andrus
that she suffered from two disabilities that impacted the pace of her work. (Id. ¶ 14).
She requested to be “treated with dignity, not micromanaged or treated
unprofessionally,” and reiterated that she would communicate in good faith. (Id.).
Gauthier acknowledged her request and confirmed that Plaintiff had not created any
problems in her role. (Id.). Plaintiff alleges that these discussions demonstrate LDH’s
actual knowledge of her disability-related limitations and her good-faith efforts to
work within her capabilities. (Id.).
On June 18, 2024, Plaintiff participated in another meeting with Gauthier and
Andrus. (Id. ¶ 15). During this meeting, Plaintiff acknowledged forgetting to log
specific telework codes amidst ongoing health and workload challenges and
committed to correcting the oversight. (Id.). Rather than offering support, Gauthier
emphasized possible audit flags and directed Plaintiff to retroactively complete leave
slips, stating, “You have not been granted any additional time . . . All deadlines set
in the planner are firm deadlines,” and further, “. . .you have to work with a sense of
urgency.” (Id.). This interaction followed an alleged pattern of heightened scrutiny
and punitive oversight over Plaintiff’s work. (Id.).
On June 20, 2024, Plaintiff formally requested additional time to complete a
particular task, explaining that she had limitations due to her medical conditions and
needed an extension of time to avoid incomplete or insufficient work product.
(Id. ¶ 16). Defendant denied this request the same day, with Andrus stating, “[Y]our
request for extensions for items listed in your planner is hereby denied” and that the
decision was “FINAL.” (Id.). Plaintiff had explained that the delays were not due to
time management issues but rather directly tied to the impairments caused by her
disabilities. (Id.).
On July 10, 2024, Dr. Kevin Riche issued a written accommodation request to
LDH asking that Plaintiff “be given extended time to finish specific deadlines due to
shoulder pain for the next 2 weeks.” (Id. ¶ 17). LDH allegedly ignored and disregarded
this request. (Id.).
On August 9, 2024, Dr. Larry Bankston issued a follow-up note explicitly
stating that Plaintiff “is limited in desk ability,” and must be allowed “extra time to
complete any and all assignments.” (Id. ¶ 22). Despite having these clear directives
from treating orthopedic specialists, LDH neither adjusted Plaintiff’s workload nor
engaged in any further discussion of accommodations. (Id.). Plaintiff alleges that
these denials reflect a clear violation of the RA’s interactive process requirement and
underscore Defendant’s bad faith. (Id.). Plaintiff also alleges that LDH subjected her
to excessive and unnecessary monitoring shortly after she disclosed her disabilities.
(Id. ¶ 29).
Plaintiff was ultimately terminated on October 30, 2024, despite allegedly
being a qualified individual with a disability who could perform the essential
functions of her job effectively with reasonable accommodations. (Id. ¶ 32).
II. PROCEDURAL HISTORY
On October 15, 2025, Plaintiff filed this lawsuit. (Doc. 1). Plaintiff alleges that
Defendant violated the Rehabilitation Act, 29 U.S.C. § 701, et seq., in the following
ways:
(1) Discriminating against her on the basis of her disabilities;
(2) Failing to accommodate her, including by refusing to engage in an interactive
process to determine reasonable accommodations;
(3) Retaliating against her for seeking accommodations and taking medical leave,
including:
a. Issuing an unjustifiably low performance review in August 2023;
b. Falsely alleging unprofessional behavior during hiring interviews in
October 2023;
c. Issuing a baseless “Letter of Improvement” in October 2023;
d. Reassigning Plaintiff to an unrelated special project in January 2024,
effectively isolating her from her team;
e. Increasing her workload, imposing unreasonable deadlines, and
subjecting her to heightened scrutiny;
f. Removing Plaintiff from key decision-making roles without justification;
and
(4) Terminating Plaintiff on the basis of her disability instead of accommodating
her.
(Doc. 1).
Based on Defendant’s alleged violations of the RA, Plaintiff seeks the following
relief:
(1) Declaratory judgment that Defendant violated the RA;
(2) Reinstatement to her previous position or, alternatively, front pay;
(3) Back pay including lost wages, benefits, and interest;
(4) Compensatory damages for emotional distress, mental anguish, and loss of
enjoyment of life.
(5) Pre- and post-judgment interest;
(6) Reasonable attorney’s fees and litigation costs;
(7) All other legal and equitable relief to which Plaintiff may be entitled.
(Id. | 45).
Now, Defendant moves to dismiss each of Plaintiffs claims against it. (Doc. 21).
For the following reasons, Defendant’s Motion will be GRANTED IN PART and
DENIED IN PART.
II. LEGAL STANDARD
Defendant moves to dismiss Plaintiffs claims under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6).
A. Rule 12(b)(1).
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred
by statute, they lack the power to adjudicate claims.” In re FEMA Trailer
Formaldehyde Products Liab. Litig, 668 F.3d 281, 286 (5th Cir. 2012). Under
Rule 12(b)(1), a claim is “properly dismissed for lack of subject-matter jurisdiction
when the court lacks the statutory or constitutional power to adjudicate the claim.”
Id. (quoting Home Builders Ass’n, Inc. v. City of Madison, 143 F.3d 1006, 1010
(5th Cir. 1998)). A court should consider a Rule 12(b)(1) attack before addressing any
challenge on the merits of the claims. Id.
A motion to dismiss under Rule 12(b)(1) is analyzed under the same standard
as a motion to dismiss under Rule 12(b)(6). Benton v. United States, 960 F.2d 19, 21
(5th Cir. 1992). That standard seeks to determine whether “a complaint .. . contain[s]
sufficient factual matter, accepted as true, to ‘state a claim to 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 (2007)). “[F]acial plausibility” exists “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly,
550 U.S. at 556). Hence, the complaint need not set out “detailed factual allegations,”
but something “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action” is required. Twombly, 550 U.S. at 555. “Factual
allegations must be enough to raise a right to relief above the speculative level.” Id.
In reviewing a Rule 12(b)(6) motion, a court must accept all well-pleaded facts
in the complaint as true and view them in the light most favorable to the plaintiff.
Sonnier v. State Farm Mutual Auto Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on a Rule 12(b)(1) motion,
however, “the court is permitted to look at evidence in the record beyond simply those
facts alleged in the complaint and its proper attachments.” Ambraco, Inc. v.
Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009); Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001) (holding that a court ruling on a Rule 12(b)(1)
motion may evaluate “(1) the complaint alone, (2) the complaint supplemented by
undisputed facts evidenced in the record, or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts”).
B. Rule 12(b)(6).
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint
against the legal standard set forth in Federal Rule of Civil Procedure 8, which
requires “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to 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 (2007)). “Determining whether a
complaint states a plausible claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.”
Ashcroft, 556 U.S. at 679.
“[Flacial plausibility” exists “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Jd. at 678 (citing Twombly, 550 U.S. at 556). Hence, the
complaint need not set out “detailed factual allegations,” but something “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action”
is required. Twombly, 550 U.S. at 555. When conducting its inquiry, the Court
“accepts all well-pleaded facts as true and views those facts in the light most favorable
to the plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010)
(quotation marks omitted).
10
IV. DISCUSSION
Defendant moves to dismiss each of Plaintiff’s claims. (Doc. 21). First,
Defendant argues that the Court lacks subject matter jurisdiction over Plaintiff’s
claims arising out of alleged “disciplinary actions” because she was a classified civil
service employee with permanent status, such that the Louisiana Civil Service
Commission (the “Commission”) has exclusive jurisdiction over these claims.
(Id. at 1).
Next, Defendant urges that Plaintiff fails to state a claim on which relief may
be granted for three reasons:
(1) Plaintiff’s request for emotional distress damages under the RA is
precluded by the U.S. Supreme Court’s decision in Cummings v.
Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022);
(2) The majority of Plaintiff’s claims are time-barred under Louisiana’s
one-year statute of limitations which applies to all claims arising before
July 1, 2024; and
(3) Plaintiff failed to allege actionable, “materially adverse” employment
actions sufficient to state a retaliation claim under Burlington Northern &
Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
(Doc. 21 at 1–2). The Court will address each argument in turn, beginning with
whether the Court has subject matter jurisdiction to consider Plaintiff’s claims.
A. Whether the Court Has Subject Matter Jurisdiction.
First, Defendant argues that the Court lacks subject matter jurisdiction over
Plaintiff’s claims arising out of “disciplinary actions,” including her alleged
reassignment and termination and her requests for back pay, front pay, and
reinstatement, because she was a classified civil service employee with permanent
status. (Doc. 21 at 1). Defendant argues that the Commission has exclusive
jurisdiction over these claims under the Louisiana Constitution. (Id.).
Plaintiff responds that this Court has repeatedly held that claims based on
federal law do not fall within the Commission’s exclusive jurisdiction. (Doc. 25 at 5
(citing Butler v. La. Dep’t of Health & Hosps., No. CV 07-723-SCR,
2008 WL 11351445, at *5 (M.D. La. Mar. 18, 2008) (“Plaintiff’s claims based on
federal law do not fall within the Civil Service Commission’s original jurisdiction.
Thus, this court has jurisdiction over the plaintiff’s federal law claims irrespective of
the Civil Service Commission’s jurisdiction.”); Owens v. La. State Dep’t of Health &
Hosps., No. CIV.A07-743JJB-DLD, 2007 WL 4442269, at *2
(M.D. La. Dec. 14, 2007))). Plaintiff urges that Defendant cannot use Plaintiff’s civil
service status to strip this Court of jurisdiction over congressionally created federal
rights. (Doc. 25 at 6).
Article X § 12(A) of the Louisiana Constitution provides that “[t]he State Civil
Service Commission shall have the exclusive power and authority to hear and decide
all removal and disciplinary cases, with subpoena power and power to administer
oaths.” Courts interpret Article X of the Louisiana Constitution “to grant exclusive
jurisdiction to the Civil Service Commission in those areas where the Commission
has exercised its broad and general rule-making power.” Merida v.
Bd. Of Commissioners of Se. Louisiana Flood Prot. Auth.-E., No. CV 23-1992,
2024 WL 4252748, at *7 (E.D. La. Sept. 20, 2024), aff’d sub nom. Merida v.
Bd. Of Comm’rs of the Se. La. Flood Prot. Auth. - E., No. 25-30434, 2026 WL 822018
(5th Cir. Mar. 25, 2026) (citing Akins v. Hous. Auth. of New Orleans, 2003-1086, p. 3
(La. App. 4 Cir. 9/10/03), 856 So. 2d 1220, 1221 (internal quotation marks and citation
omitted), writ denied, 2003-2781 (La. 12/19/03), 861 So. 2d 574). That means
“Louisiana district courts do not have jurisdiction over employment[-]related disputes
such as reinstatement, back pay, and merit increases asserted by classified civil
service employees against the state.” Merida, 2024 WL 4252748, at *7 (citing Kling v.
La. Dep’t of Revenue, 2018-1480, p. 14 (La. App. 1 Cir. 7/18/19); 281 So. 3d 696, 708,
writ denied, 2019-01434 (La. 11/5/19); 281 So. 3d 671, and writ denied, 2019-01441
(La. 11/5/19); 281 So. 3d 671). “The thrust of the grant of exclusive jurisdiction over
employment-related disputes between employers and employees in civil service is to
preclude the district court from having concurrent jurisdiction with the Civil Service
Commission over such disputes.” Merida, 2024 WL 4252748, at *7 (citing Kling,
281 So. 3d at 709; Johnson v. Bd. of Supervisors of La. State Univ. & Agr. & Mech.
Coll., 45,105, p. 6 (La. App. 2 Cir. 3/3/10); 32 So. 3d 1041, 1046).
But the Commission’s exclusive jurisdiction is limited. For example, the
Commission “has no subject matter jurisdiction over tort cases and cannot award
general monetary damages.” Merida, 2024 WL 4252748, at *7 (citing Kling,
281 So. 3d at 709; Johnson, 32 So. 3d at 1046). So, Louisiana courts have concluded
that Article X does not preclude a plaintiff from bringing a claim for “damages beyond
the scope . . . of the Commission’s jurisdiction.” Merida, 2024 WL 4252748, at *7
(citing Barringer v. Robertson, 2015-0698, p. 3 (La. App. 1 Cir. 12/2/15);
216 So. 3d 919, 922 n.3, writ denied, 2016-0010 (La. 2/26/16); 187 So. 3d 1004; cf.
Huval v. State ex rel. Dep’t of Pub. Safety & Corrs., 2016-1857, p. 10–11 (La. 5/3/17);
222 So. 3d 665, 671–72 (reasoning that Article X did not preclude wrongful-
termination plaintiffs from bringing tort claims in a Louisiana district court because
the relevant state agency was “powerless to award ... the type of tort damages sought
by plaintiffs”)) (footnote omitted).
Federal courts have similarly held that claims for “general tort damages” that
the Commission cannot award are not subject to the Commission’s exclusive
jurisdiction and can be brought in court. See, e.g., Pike v. Off. of Alcohol & Tobacco
Control of the La. Dep’t of Revenue, 157 F. Supp. 3d 523, 541 (M.D. La. 2015); Jones
v. Gee, No. 18-CV-5977, 2020 WL 564956, at *6 (E.D. La. Feb. 5, 2020); Edmonds v.
New Orleans City, No. 16-CV-298, 2017 WL 2671690, at *4 (E.D. La. June 20, 2017).
Here, among other claims, Plaintiff asserts claims arising out of her
reassignment and termination. (Doc. 1 ¶ 45). Plaintiff seeks back pay, front pay, and
reinstatement. (Id.). In Stevenson v. Williamson, 547 F. Supp. 2d 544, 557
(M.D. La. 2008), aff’d, 324 F. App’x 422 (5th Cir. 2009), this Court held:
Because Article X, § 12(a) grants the Civil Service Commission
the exclusive power and authority to hear and decide all removal and
disciplinary cases, Louisiana district courts do not have jurisdiction over
such employment related disputes as reinstatement, back pay and merit
increases asserted by classified civil service employees against the state.
See e.g., Goldsby v. State, Dept. of Corrections, 861 So.2d 236, 238
(La.App. 1 Cir.2003); see also, Barenis v. Gerace, 357 So.2d 892
(La.App. 1 Cir.1978) (holding that the Civil Service Commission has
exclusive jurisdiction over the issue of whether a state employee was
entitled to a promotion).
The Civil Service Commission however has no authority to
provide general tort damages. (Simon v. Board of Commissioners of Port
of New Orleans, 875 So.2d 102, 106 (La.App. 4 Cir.2004). Greenleaf v.
DHH, Metropolitan Developmental Center, 594 So.2d 418
(La.App. 1 Cir.1991) writ denied, 596 So.2d 102 (La.App. 4 Cir.1992)).
Plaintiff in the present case claims damages for humiliation,
embarrassment, loss of reputation, opportunity for
advancement/promotion, lost wages and benefits, mental anguish and
emotional distress. Therefore, the [state court] had subject matter
jurisdiction over the general tort claims at the time of removal. As a
consequence, jurisdiction is present in this court over the general tort
claims[.]
Id. (footnote omitted).
In Pike v. Off. of Alcohol & Tobacco Control of the La. Dep’t of Revenue,
157 F. Supp. 3d 523, 541 (M.D. La. 2015), the Court similarly held that “the
[Commission] has exclusive jurisdiction over termination claims, including
termination claims based on disability discrimination.” Id. (deGravelles, J.); see also
Jones, 2020 WL 564956, at *6 (dismissing plaintiff’s claims stemming from her
wrongful termination as within the [Commission’s] exclusive jurisdiction). The Court
found, however, that it had jurisdiction over Plaintiff’s claims for loss of enjoyment,
loss of reputation, lost wages and benefits, mental anguish, and emotional distress
because the Commission has no authority to provide for general tort damages. Pike,
157 F. Supp. 3d at 541 (citing Stevenson, 547 F. Supp. 2d at 557).
The same result must issue here. Under Stevenson and Pike, the Court does
not have jurisdiction over Plaintiff’s claims arising out of her alleged reassignment
and termination, nor does the Court have jurisdiction over her requests for back pay,
front pay, and reinstatement. The Court does, however, have jurisdiction to
adjudicate Plaintiff’s remaining claims. (Doc. 1 ¶ 45).
The Court’s conclusion is consistent with the relief Defendant requests.
Defendant argues: “While this Court does not have jurisdiction over the alleged
disciplinary actions (the reassignment and discharge, along with the claim for lost
wages, back pay or front pay), this Court does have subject matter jurisdiction over
Plaintiff’s discrimination and retaliation claims which are unrelated to the
disciplinary actions.” (Doc. 21-1 at 9 (citing Simien v. Freeman, No. 04-701,
2005 WL 8155616, at *4 (M.D. La. July 19, 2005) (“[W]hether the plaintiff’s claims
fall within the exclusive jurisdiction of the Commission depends upon the nature of
the claims. If the plaintiff’s claims are rooted in disciplinary action, then they fall
within the purview of the Commission. . . . If, instead, they are based on
discrimination, then the district court has jurisdiction.”))).
Accordingly, Defendant’s Motion to Dismiss (Doc. 21) is GRANTED in this
respect. Plaintiff’s claims stemming from her reassignment and termination, and her
requests for back pay, front pay, and reinstatement are DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction.
B. Whether Emotional Distress Damages are Permitted Under the RA.
Second, Defendant moves to dismiss Plaintiff’s request for emotional distress
damages as precluded by the U.S. Supreme Court’s decision in Cummings v.
Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022). (Doc. 21 at 2). In response,
Plaintiff withdraws her request for emotional distress damages. (Doc. 25 at 7).
Accordingly, Defendant’s Motion to Dismiss (Doc. 21) is GRANTED in this
respect. Plaintiff’s request for emotional distress damages is DISMISSED WITH
PREJUDICE.
C. Whether Plaintiff’s Claims are Time-Barred.
Third, Defendant argues that the majority of Plaintiff’s claims are time-barred
under Louisiana’s: (1) one-year prescriptive period for any action occurring before
July 1, 2024; and (2) two-year prescriptive period for any action occurring on or after
July 1, 2024.1 (Doc. 21 at 1; Doc. 21-1 at 11).
Plaintiff does not dispute the applicable prescriptive periods, but argues that
she has plausibly alleged a hostile work environment, made up of a series of separate
1 The Rehabilitation Act does not provide a statute of limitations. The Court has previously
emphasized:
When Congress does not establish a limitations period for a federal cause of
action, the court is to borrow the most analogous period from state law.
Generally, claims under the []RA are subject to the relevant state’s limitations
period for personal injury actions. Under Louisiana law, the applicable
prescriptive period for personal injury actions is one year. Therefore, Plaintiff’s
claim pursuant to the []RA in this matter would be subject to a one-year statute
of limitations.
Fletcher v. Louisiana Dep’t of Transp. & Dev., No. 18-CV-00860, 2019 WL 3240056, at *3
(M.D. La. July 18, 2019), aff’d, 848 F. App’x 163 (5th Cir. 2021).
Currently, however, Louisiana’s prescriptive period applicable to personal injury claims is
two years. La. Civ. Code art. 3493.1. Article 3493.1 has “prospective application only,” and
its two-year prescriptive period “shall apply to delictual actions arising after the
[July 1, 2024] effective date of [Act 423].” TORT ACTIONS, 2024 La. Sess. Law Serv. Act 423
(H.B. 315). Accordingly, to the extent the alleged facts underlying Plaintiff’s claims occurred
before July 1, 2024, the former Article 3492 and its one-year prescriptive period apply. See
Allied World Nat’l Assurance Co. v. Nisus Corp., 134 F.4th 821, 826 n.3 (5th Cir. 2025)
(applying the former Article 3492’s one-year prescriptive period to tort claim arising from
facts occurring before July 1, 2024). To the extent the alleged facts underlying Plaintiff’s
claims occurred after July 1, 2024, the two-year prescriptive period applies. Neither party
disputes the applicable prescriptive periods.
acts that collectively constitute one unlawful employment practice. (Doc. 25 at 9).
Plaintiff urges that a hostile work environment claim is timely so long as any act
contributing to the hostile work environment occurred within the prescriptive period,
which begins to accrue upon the ceasing of the hostile work environment. (Id.).
Plaintiff contends that the United States Court of Appeals for the Fifth Circuit has
held that acts, which may otherwise be time-barred if viewed independently, may be
considered under the totality of the circumstances as part of a hostile work
environment claim. (Id. (citing Ramsey v. Henderson, 286 F.3d 264, 268
(5th Cir. 2002)).
Defendant responds that Plaintiff’s retaliation and failure to accommodate
claims stem from discrete acts that trigger the running of the statute of limitations
on the date in which the discrete act occurred, such that these claims cannot be saved
by the continuing violations doctrine. (Doc. 27 at 7–10).
Under the continuing violations doctrine, a plaintiff may complain of otherwise
time-barred discriminatory acts if it can be shown that the discrimination manifested
itself over time, rather than in a series of discrete acts. See Frank v. Xerox Corp.,
347 F.3d 130, 136 (5th Cir. 2003) (citing Huckabay v. Moore, 142 F.3d 233, 238–39
(5th Cir. 1998)). Discrete actions, however, are not entitled to the shelter of the
continuing violation doctrine. Id.
“Discrete acts such as termination, failure to promote, denial of transfer, or
refusal to hire are easy to identify,” and each of these discriminatory or retaliatory
incidents is “a separate actionable ‘unlawful employment practice.’” Santos v.
Baton Rouge Water Works Co., No. CV 18-1098-JWD-RLB, 2021 WL 1227875, at *12
(M.D. La. Mar. 31, 2021) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
114 (2002)). “A discrete retaliatory or discriminatory act ‘occur[s]’ on the day that it
‘happen[s].’” Santos, 2021 WL 1227875, at *12 (citing Morgan, 536 U.S. at 110). “[T]he
limitations period begins on the date of the alleged unlawful employment action.”
Santos, 2021 WL 1227875, at *12 (citing Phillips v. Leggett & Platt, Inc.,
658 F.3d 452, 455 (5th Cir. 2011)).
The “continuing violation theory—which allows courts to consider otherwise
time-barred acts of discrimination—is applicable only to hostile work environment
claims, not discrimination or retaliation claims.” Pollard v. Dejoy, No. CV 24-224,
2024 WL 3617534, at *7 (E.D. La. Aug. 1, 2024) (internal quotation marks omitted)
(citing Bashiri v. Alamo Cmty. Coll. Dist., No. SA-07-CV-1028, 2009 WL 2998228,
at *2 (W.D. Tex. Sept. 16, 2009); Morgan, 536 U.S. at 110–11).2
Likewise, failure to accommodate claims arise from discrete acts. Hernandez
v. Verastique, No. 4:25-CV-01395-O-BP, 2026 WL 2130902, at *3–4
(N.D. Tex. June 30, 2026), report and recommendation adopted,
No. 4:25-CV-01395-O-BP, 2026 WL 2129952 (N.D. Tex. July 22, 2026) (citing
2 See also Hamic v. Harris Cnty. W.C. & I.D. No. 36, 184 F. App’x 442, 447 (5th Cir. 2006)
(Retaliation “is, by definition, a discrete act, not a pattern of behavior. . . [So] a plaintiff can
only recover for retaliation to the extent that it occurred within the limitations period.”);
Doe #1 v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll.,
No. CV 21-564-SDD-SDJ, 2022 WL 16701930, at *18 (M.D. La. Nov. 3, 2022) (“The unique
characteristic of a claim of retaliation as a discrete, ‘easy to identify’ act that ‘occurs on the
day that it happens’ renders the continuing violation doctrine inapplicable.”); Heath v. Bd. of
Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 737 (5th Cir. 2017) (noting the
difference between “discrete acts that form the basis of traditional discrimination claims from
continuing conduct that forms the basis of hostile work environment claims”).
Sambrano v. United Airlines, Inc., 707 F. Supp. 3d 652, 674 (N.D. Tex. 2023); Henson
v. Bell Helicopter Textron, Inc., 128 F. App’x 387, 391 (5th Cir. 2005)).
Accordingly, Plaintiff’s retaliation claims based on the following instances of
alleged retaliation are prescribed and will be DISMISSED WITH PREJUDICE:
(1) retaliatory animus shown during July 18, 2023 meeting; (2) unjustifiably low
performance review in August 2023; (3) false allegations of unprofessional behavior
during hiring interviews in October 2023; (4) issuance of a baseless “Letter of
Improvement” in October 2023; and (5) workload adjustments, intensified
monitoring, and reassignment in January 2024.3 (Doc. 1 ¶¶ 20, 21, 26).
Similarly, Plaintiff’s failure to accommodate claims based on LDH’s alleged
failure to accommodate her on the following dates are prescribed and will also be
DISMISSED WITH PREJUDICE: September 18, 2023, May 22, 2024,
June 4, 2024, June 12, 2024, June 18, 2024, and June 20, 2024. (Doc. 1 ¶ 11–12, 14–
16, 18). Plaintiff’s failure to accommodate claims based on LDH’s alleged failure to
accommodate her on July 10, 2024, and August 9, 2024, are subject to Louisiana’s
two-year prescriptive period, and are thus timely, as Plaintiff filed suit on
October 15, 2025. (Id. ¶ 11, 17, 22–23).
This leaves Plaintiff’s hostile work environment claim. Although Defendant
urges that Plaintiff does not assert a formal “hostile work environment” claim, courts
have held that a plaintiff can adequately allege such a claim even without using the
3 Each of these acts occurred before the change in Louisiana law on July 1, 2024, and
therefore, the one-year prescriptive period applies. See supra, note 1. Because Plaintiff filed
suit on October 15, 2025, these claims are untimely. (Doc. 1).
term “hostile work environment” where they allege “harassment” or facts that give
the defendant “fair notice” of a hostile work environment claim. See Melvin v.
Barr Roofing Co., 806 F. App’x 301, 308 (5th Cir. 2020) (“[Plaintiff] sufficiently
alleged a hostile work environment claim; failure to use the ‘magic words’ is not
dispositive.”). Here, Plaintiff has done so.4
In Pollard v. Dejoy, the United States District Court for the Eastern District of
Louisiana emphasized:
The continuing violation doctrine “provides that when a plaintiff alleges
a hostile work environment claim, ‘as long as an employee files her
complaint while at least one act which comprises the hostile work
environment claim is still timely, the entire time period of the hostile
environment may be considered by a court for the purpose of
determining liability.’” Heath v. Bd. of Supervisors for S. Univ. & Agric.
& Mech. Coll., 850 F.3d 731, 736 (5th Cir. 2017) (quoting National R.R.
Passenger Corps. V. Morgan, 536 U.S. 101, 117 (2002)). The theory
behind the continuing violation doctrine is that, in hostile work
environment claims, acts within a more subtle pattern of discriminatory
might not be sufficiently egregious or discrete to put the Plaintiff on
notice that they have an actionable claim. See Morgan, 536 U.S. at 115-
17.
Pollard, 2024 WL 3617534, at *5. Because some of the alleged actions at issue
occurred within the relevant prescriptive periods, the Court will allow Plaintiff’s
hostile work environment claim to proceed. The Court also follows the Pollard court’s
conclusion that “detailed analysis and determination of which acts of discrimination
4 The Parties have not briefed, and the Court will not address, the sufficiency of Plaintiff’s
hostile work environment claim on the merits at this time. The Court notes, however, that
the Fifth Circuit has “read the Rehabilitation Act together with the ADA in allowing a
harassment claim under the Rehabilitation Act,” Carder v. Cont’l Airlines, Inc., 636 F.3d 172,
180 (5th Cir. 2011), though the Circuit has also suggested that the elements for a harassment
claim under the Rehabilitation Act are more stringent than an analogous claim brought
under the ADA. Julian v. DeJoy, No. 23-11101, 2024 WL 4433076, at *7
(5th Cir. Oct. 7, 2024).
are sufficiently ‘related’ to form part of the hostile work environment would be
premature on a motion to dismiss.” Pollard, 2024 WL 3617534, at *7. Accordingly,
Plaintiffs hostile work environment claim may proceed.
D. Whether Plaintiff Alleged Actionable, “Materially Adverse”
Employment Actions.
Finally, Defendant urges that Plaintiff failed to allege actionable, “materially
adverse” employment actions sufficient to state a retaliation claim under
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Because
the Court has already dismissed Plaintiff's retaliation claims, the Court need not
address this argument.
EK. Whether Plaintiff Should be Granted Leave to Amend.
In the alternative, Plaintiff requests leave to amend the Complaint. (Doc. 25
at 12). Although leave to amend should be freely given, the Court need not grant leave
to amend if an amendment would be futile. Matter of: Sherwin Alumina Co., L.L.C.,
952 F.3d 229, 236 (5th Cir. 2020) (““[W]here amendment would be futile, the court
need not grant the plaintiff leave to amend.”).
Here, the law is clear that the Court does not have jurisdiction over certain
claims, and that other claims are time-barred, as described in detail above.
No amendment would not change this reality, and thus, an amendment would be
futile. Accordingly, the Court DENIES Plaintiff leave to amend with respect to these
claims. The Court will, however, provide Plaintiff an opportunity to amend her
Complaint to more fully plead her hostile work environment claim.
22
V. CONCLUSION
Accordingly,
IT IS ORDERED that Defendant Louisiana Department of Health’s (“LDH”)
Motion to Dismiss Under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) (Doc. 21) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiff’s claims stemming from her
reassignment and termination, and her requests for back pay, front pay, and
reinstatement are DISMISSED WITHOUT PREJUDICE for lack of subject matter
jurisdiction.
IT IS FURTHER ORDERED that Plaintiff’s request for emotional distress
damages is DISMISSED WITH PREJUDICE based on Plaintiff’s withdrawal of
this request.
IT IS FURTHER ORDERED that Plaintiff’s failure to accommodate claims
based on LDH’s alleged failure to accommodate her on September 18, 2023,
May 22, 2024, June 4, 2024, June 12, 2024, June 18, 2024, and June 20, 2024, are
DISMISSED WITH PREJUDICE as prescribed.
IT IS FURTHER ORDERED that Plaintiff’s retaliation claims based on the
following instances of alleged retaliation are DISMISSED WITH PREJUDICE as
prescribed: (1) retaliatory animus shown during July 18, 2023 meeting;
(2) unjustifiably low performance review in August 2023; (3) false allegations of
unprofessional behavior during hiring interviews in October 2023; (4) issuance of a
baseless “Letter of Improvement” in October 2023; and (5) workload adjustments,
intensified monitoring, and reassignment in January 2024.
IT IS FURTHER ORDERED that the following claims remain:
(1) Plaintiffs failure to accommodate claims based on LDH’s alleged failure to
accommodate her on July 10, 2024, and August 9, 2024; and
(2) Plaintiffs hostile work environment claim.
IT IS FURTHER ORDERED that Plaintiff is granted leave to amend her
Complaint within 21 days of the issuance of this Ruling and Order, as described
herein.
Baton Rouge, Louisiana, this day of September, 2026
JUDGE BRIAN A. 2
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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