Jenkins v. BD. OF EDUC. OF HOUSTON INDEP. DIST.

• Decision Date: 22 August 1996
• Docket Number: Civil Action No. H-96-cv-10.
• Parties: Bennie E. JENKINS, Plaintiff, v. The BOARD OF EDUCATION OF the HOUSTON INDEPENDENT SCHOOL DISTRICT, Dr. Rod Paige, Mr. Leonard Strum, Mr. Ron Franklin, Ms. Paula Arnold, Dr. Cathy Mincberg, Ms. Olga Gallegos, Ms. Esther Campos, Dr. Don McAdams, Ms. Joyce Moss-Clay, Mr. Bob Lucas and Mr. Robert Moore, Defendants.
• Court: U.S. District Court — Southern District of Texas

937 F. Supp. 608

Bennie E. JENKINS, Plaintiff, v. The BOARD OF EDUCATION OF the HOUSTON INDEPENDENT SCHOOL DISTRICT, Dr. Rod Paige, Mr. Leonard Strum, Mr. Ron Franklin, Ms. Paula Arnold, Dr. Cathy Mincberg, Ms. Olga Gallegos, Ms. Esther Campos, Dr. Don McAdams, Ms. Joyce Moss-Clay, Mr. Bob Lucas and Mr. Robert Moore, Defendants.

Civil Action No. H-96-cv-10.

United States District Court, S.D. Texas, Houston Division.

August 22, 1996.

Carnegie H. Mims, Jr., Jefferson & Mims, Houston, TX, for plaintiff.

Jeffrey J. Horner, Bracewell & Patterson, Houston, TX, for defendants.

ORDER OF PARTIAL DISMISSAL

HUGHES, District Judge.

1. This court adopts the memorandum and recommendation of the United States Magistrate Judge signed July 25, 1996.

2. Defendants Dr. Rod Paige, Leonard Sturm, Ron Franklin, Paula Arnold, Dr. Cathy Mincberg, Olga Gallegos, Esther Campos, Dr. Don McAdams, Joyce Moss-Clay, Bob Lucas, and Robert Moore are dismissed as defendants in this case.

MEMORANDUM AND RECOMMENDATION

CRONE, United States Magistrate Judge.

Pending before the court is defendant Houston Independent School District (HISD) and individual defendants Dr. Rod Paige, Leonard Sturm, Ron Franklin, Paula Arnold, Dr. Cathy Mincberg, Olga Gallegos, Esther Campos, Dr. Don McAdams, Joyce Moss-Clay, Bob Lucas, and Robert Moore's (collectively HISD defendants) motion for partial dismissal for failure to state a claim for which relief can be granted (# 11). The HISD defendants request dismissal of this claim against them in both their individual and official capacities.

Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, this court recommends that the motion be granted.

1. Background

In 1986, Congress passed the Asbestos Hazardous Emergency Response Act (AHERA) to correct the problems of asbestos in school buildings. The AHERA mandated that all school districts inspect each school building and adopt "the least burdensome methods which protect human health and the environment."

In response to this federal mandate, HISD created the Bureau of Hazardous Materials (later changed to the Environmental Affairs Department) and appointed plaintiff Bennie E. Jenkins as the first Executive Director. As part of his duties, Jenkins was responsible for completing re-inspections of the schools for asbestos materials and for supervising licensed asbestos inspectors who were performing the actual re-inspections. Jenkins was also responsible for scheduling and maintaining the schedule of re-inspections. In addition, Jenkins was appointed as the designated agent for complying with reporting requirements of AHERA.

Jenkins's immediate supervisor was defendant Bob Lucas, an Assistant Superintendent of HISD. Lucas was supervised by defendant Joyce Moss-Clay, Director or Manager of Field Management Operations of HISD. Moss-Clay reported to defendant Leonard Sturm, Deputy Superintendent of Finance. Sturm, in turn, reported to the General Superintendent of HISD, Dr. Frank Petruzielo.

According to Jenkins, on Friday, August 27, 1993, he was contacted by McBon Environmental and Construction Company (McBon), a local asbestos removal contractor, and informed that the New York City School System was experiencing a crisis. Jenkins contends that over 1,000 schools in New York City were closed down due to faulty reinspections of asbestos materials and the New York City School System had placed an emergency call for additional asbestos inspectors. Jenkins maintains that the schools could not be reopened until inspections were redone. Thus, Jenkins volunteered himself and requested volunteers from his staff to go with him to assist the New York City asbestos inspectors. According to Jenkins, he felt it was part of his duty to discover what the New York City inspectors had done which caused the closing of over 1,000 schools. Jenkins alleges that in view of the New York City crisis and to ascertain whether the inspections in Houston were being properly performed, he suspended HISD's re-inspection schedule.

McBon made arrangements for Jenkins and his staff to depart Houston for New York City on Tuesday, August 31, 1993. On Monday, August 30, 1993, McBon allegedly notified Jenkins that it was necessary for his group to leave that day. Jenkins asserts that before he left the office to go to the airport, he attempted to inform his supervisor, Lucas, of the crisis and his decision to travel to New York City to find out what went wrong with the inspections. Jenkins contends, however, that Lucas was in an agenda meeting and unavailable to meet with him. Jenkins asserts that it was his belief that it was mandatory for him to go and that Lucas would approve his decision. Therefore, Jenkins left the office without discussing the matter with Lucas. At 6:00 p.m. on Monday, August 30, 1993, Jenkins and thirteen members of his staff departed for New York City without first discussing the matter with Lucas or any of his superiors.

Jenkins called Lucas on Tuesday morning, August 31, 1993, to inform him of the alleged crisis and of his decision to go to New York City with his staff. According to Jenkins, Lucas stated that he had heard that Jenkins had resigned and had accepted an offer of employment with McBon. Jenkins alleges that he assured Lucas that he had not resigned and would return to Houston as soon as he found out what the problem was with the re-inspections of the New York City schools. After learning that the trip had not been authorized by Lucas and their jobs were in jeopardy, all but one of Jenkins's staff members returned to Houston on Thursday, September 2, 1993. The remaining staff member returned to Houston on Saturday, September 4, 1993.

According to Jenkins, he had been experiencing sleepiness, dizziness, and disorientation during the four-day period from Friday, August 27 to Monday, August 30, 1993. Jenkins, a diabetic, contends that he thought these difficulties were due to low blood sugar. Thus, on the way to the airport, Jenkins allegedly went to a pharmacy and renewed his diabetic medication prescription. Jenkins claims that he did not accompany his staff back to Houston on September 2 because of his illness. On September 3, 1993, he suffered a nervous breakdown and was hospitalized in New York City. Jenkins was released from the hospital and returned to Houston on Monday, September 7, 1993. He immediately was placed under the care of Dr. Jan J. Poage, a Houston psychiatrist, who recommended that Jenkins take a medical leave of absence.

Jenkins's trip was investigated by defendant Robert Moore, Assistant Superintendent of Financial Audit and the assistant to Sturm. Based on Moore's investigation, on October 25, 1993, the General Superintendent of HISD at that time, Petruzielo, recommended that Jenkins be terminated. On February 24, 1994, and March 10 and 11, 1994, a due process termination hearing was conducted before Hearing Officer, Ann Vevier Lockwood. On May 13, 1994, the Hearing Officer issued her written findings, which upheld the administration's recommendation to terminate Jenkins. Jenkins appealed the Hearing Officer's decision to the HISD Board of Education. While his appeal was pending, Jenkins alleges that he suffered another nervous breakdown and was hospitalized in Houston. On May 27, 1994, Jenkins was diagnosed by psychiatrist Dr. Mark Jacobs as having manic-depression or bipolar disorder, from which he allegedly suffered before, during, and after his trip to New York City. Jacobs mailed a copy of this diagnosis to Sturm. Jenkins maintains that he informed Lucas and Sturm of his medical disability and requested accommodation for his mental illness. Jenkins's request was denied.

On June 3, 1994, Jenkins filed an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging that the defendants were violating the Americans with Disabilities Act (ADA) by refusing to take into consideration his medical disability.

In August 1994, Jenkins allegedly attempted to introduce this medical evidence to the Board of Education at his appeal hearing. Jenkins contends, however, that the Board of Education would not consider any evidence not included in the record before the Hearing Officer. On August 25, 1994, the Board formally terminated Jenkins's employment.

The EEOC issued Jenkins a right to sue letter on September 28, 1995, and on January 3, 1996, Jenkins filed his original complaint, pro se, in this court alleging discrimination on the basis of a medical disability. Jenkins subsequently amended his complaint alleging that the defendants discriminated against him in violation of the ADA, 42 U.S.C. § 12101, et seq.

2. Analysis

A. The Standard for Dismissal under Rule 12(b)(6)

A motion to dismiss under FED. R.CIV.P. 12(b)(6) tests only the formal sufficiency of the statements of the claims for relief. It is not a procedure for resolving contests about the facts or the merits of the case. In ruling on a motion to dismiss, the court must take the plaintiff's allegations as true, view them in a light most favorable to him, and draw all inferences in his favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); see also Capital Parks, Inc. v. Southeastern Advertising & Sales Sys., Inc., 30 F.3d 627, 629 (5th Cir.1994); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284-85 (5th Cir. 1993). The court may not look beyond the four corners of the plaintiff's pleadings. McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir.1992). Thus, the motion must be denied unless it appears to a certainty that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957): Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995...