Baustian v. State of La.

• Decision Date: 12 June 1996
• Docket Number: Civil Action No. 95-1072.
• Citation: 929 F. Supp. 980
• Parties: Steven BAUSTIAN v. STATE OF LOUISIANA.
• Court: U.S. District Court — Eastern District of Louisiana

929 F. Supp. 980

Steven BAUSTIAN v. STATE OF LOUISIANA.

Civil Action No. 95-1072.

United States District Court, E.D. Louisiana.

June 12, 1996.

Steven E. Baustian, New Orleans, LA, Pro Se.

Sandra Ema Gutierrez, Louisiana Dept. of Justice, New Orleans, LA, for Defendant.

ORDER AND REASONS

MENTZ, District Judge.

Plaintiff Baustian has filed a motion for reconsideration¹ asking this Court to reconsider its earlier ruling granting defendant State of Louisiana's motion to dismiss for failure to state a claim. The state has filed a response in opposition. Having reviewed the motion, the memoranda of the parties, the record, and the law, the Court denies the motion.

Background

In its ruling entered April 25, 1996, the Court granted defendant's motion to dismiss for failure to state a claim directed at plaintiff's claims arising under the Rehabilitation Act, 29 U.S.C. § 701 et seq., Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and the Civil Rights Act, 42 U.S.C. § 1983. Rec. doc. 47. Plaintiff now claims that there is an exception to the general rule that an individual with a disability does not include an individual who is currently engaged in the illegal use of drugs, and that he falls into the excepted category of drug users. See 42 U.S.C. § 12210(a) and (c).

Law and Analysis

Although the Federal Rules of Civil Procedure do not particularly recognize the "motion for reconsideration," district courts will often accept such motions as being in the interest of substantial justice. See F.R.C.P. 8(f). However, a motion to reconsider based on recycled arguments only serves to waste the resources of the court. State of Louisiana v. Sprint Communications Co., 899 F.Supp. 282 (M.D.La.1995). Therefore, rulings should only be reconsidered where the moving party has presented substantial reasons for reconsideration. Id. A motion for reconsideration should not give the losing party the opportunity to simply reargue his losing points and authorities. Shields v. Shetler, 120 F.R.D. 123 (D.Colo.1988).

In this case, plaintiff has come forward with copies of various employment manuals, including the Corrections Services Employee Manual, an Employee Assistance Program ("EAP") pamphlet, an Employee Assistance Program Description, and several versions of the Human Resource Management Drug Free Workplace regulations.² All of these exhibits are attached to plaintiff's motion to alter or amend judgment. Rec. doc. 50.

Despite plaintiff's new arguments and evidence in support, the Court must nevertheless again find that he has failed to state a claim. First, plaintiff erroneously contends that referral to the EAP was mandatory. The EAP provides in pertinent part:

Any time a supervisor believes an employee is adversely affected by problems beyond the employees control (i.e., substance abuse or personal problems), such performance should be documented. In a privately scheduled meeting, the employee will be presented a copy of the documentation citing which aspects of job performance need improvement and identifying performance expectations. At this time, the supervisor will allow the employee the option of participating voluntarily in the EAP or improving problem behavior independently ...

Whether or not the employee decides to enter the EAP, the supervisor and employee will agree on a time frame during which the employee's work performance will be monitored to see if it returns to a satisfactory level ...

If the employee's work performance does not improve or if another infraction occurs, then it will become mandatory that the employee be referred to the EAP. While it is mandatory that the supervisor make this referral, it is not mandatory that the employee enter the program.

EAP Program Description, pgs. 2-3. Plaintiff apparently believes these provisions require that his supervisor actually place him in a drug recovery program because he was addicted to marijuana. There are several errors in his reading of this program's terms.

First, under the express terms of EAP, the supervisor must initially notice a deficiency in the employee's work performance. The supervisor must bring the noted deficiency to the employee's attention and give the employee the option of participating in the EAP. If the employee's work product does not improve, the supervisor must refer the employee to the EAP. By the clear wording of the provision, the supervisor may not require the employee to participate in the EAP.

In this case, there is no allegation that any supervisor noticed a performance deficiency, or that any deficiency meeting was ever held or even required to be held. To the contrary, plaintiff alleges that he received excellent performance reviews. Even if there had been a deficiency which was noted and not corrected, plaintiff's supervisor still could not force him into the EAP. Employee application and participation in the EAP are clearly voluntary. Therefore, plaintiff's argument that employer-initiated placement in the EAP was mandatory is clearly misplaced.

In a similar vein, plaintiff argues that he is protected by 42 U.S.C. 12210(c) which provides in pertinent part:

Notwithstanding subsection (a) and section 511(b)(3) 42 USCS § 12211(b)(3), an individual shall not be denied health services, or services provided in connection with drug rehabilitation, on the basis of the current illegal use of drugs if the individual is otherwise entitled to

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