Rizzo v. Blues Mgmt.

• Decision Date: 24 January 2017
• Docket Number: CIVIL ACTION NO. 4:16-cv-01017
• Parties: DIANE RIZZO, Plaintiff, v. BLUES MANAGEMENT, I NC. d/b/a DAPA FAMILY RECOVERY PROGRAMS, Defendant.
• Court: U.S. District Court — Southern District of Texas

DIANE RIZZO, Plaintiff, v. BLUES MANAGEMENT, I NC. d/b/aDAPA FAMILY RECOVERY PROGRAMS, Defendant.

CIVIL ACTION NO. 4:16-cv-01017

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

January 24, 2017

MEMORANDUM AND RECOMMENDATION ON DEFENDANT BLUES MANAGEMENT, INC.'S MOTION TO DISMISS UNDER RULE 12(B)(6), MOTION TO STRIKE JURY DEMAND, AND MOTION TO STRIKE ALLEGATIONS UNDER RULE 12(F)(2)

This matter was referred by United States District Judge Vanessa Gilmore, for full pre-trial management, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket Entry #15). In this case, Plaintiff Diane Rizzo ("Plaintiff," "Rizzo") brings claims against Defendant Blues Management, Inc. d/b/a DAPA Family Recovery Programs ("Defendant," "the Company," "BMI") under the Americans with Disabilities Act, 42 U.S.C.A. § 12101, et seq., as amended. (Plaintiff's Original Complaint ["Complaint"] ¶ 4.12, Docket Entry #1). She claims that Defendant discriminated against her, on the basis of a disability, and retaliated against her for seeking unemployment pay, after she was terminated. (Id. ¶¶ 4.5-12). Before the court is Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Defendant seeks to dismiss Plaintiff's request for compensatory and punitive damages under the Americans with Disabilities Act's retaliation provision, as well as the jury demand.(Defendant Blues Management, Inc.'s Motion to Dismiss Certain Claims for Failure to State a Claim Upon Which Relief Can be Granted, Motion to Strike Jury Demand for ADA Retaliation Claim, and Motion to Strike Allegations Under Fed. R. Civ. P. 12(f)(2) ["Motion"], Docket Entry #6). Defendant also moves to strike certain allegations in the pending Complaint, under Rule12(f)(2). (Id. at 5-7). Plaintiff has responded in opposition to these requests. (Plaintiff's Response to Defendant Blues Management, Inc.'s Motion to Dismiss Certain Claims for Failure to State a Claim Upon Which Relief Can be Granted, Motion to Strike Jury Demand for ADA Retaliation Claim, and Motion to Strike Allegation Under Fed. R. Civ. P. 12(f)(2) ["Response"], Docket Entry #12). After considering the pleadings, the evidence submitted, and the applicable law, it is RECOMMENDED that Defendant's motion be GRANTED, in part, and DENIED, in part, for the reasons set out below.

Background

Blues Management, Inc. provides mental health and substance abuse counseling services to privately insured patients, as well as to Medicare and Medicaid recipients. (Motion at 7). Rizzo worked for BMI, as a registered medical assistant, from November, 2012, until October 25, 2013. (Complaint ¶ 4.1; Response at 1). Rizzo alleges that she maintained an "excellent" employment record with the Company, and that she had never been reprimanded, before the incident at issue here. (Complaint ¶¶ 4.2, 4.4).

In September, 2013, Plaintiff was admitted to the hospital, and was unable to work. (See Complaint ¶¶ 4.3, 4.4, 4.5).While the record does not reflect the length of her absence, or whether she sought prior approval for medical leave, after Rizzo was discharged from the hospital, a BMI representative reportedly told her that it was "not [a] good tim[e,] for the [C]ompany[,] for her to have medical issues." (Id. ¶ 4.5). Plaintiff then allegedly requested additional time off for a medical procedure that had been scheduled for October 18, 2013. (Id.). She informed her supervisor that her physician recommended that she undergo bi-weekly spinal injections. (See id.). BMI approved Rizzo's leave request, but, again, allegedly informed her that her absences were "inconvenient" forthe Company. (Id.).

When Plaintiff returned to work, following the procedure, she was "written up [for] not returning phone calls." (Id. ¶ 4.7). Rizzo maintains, however, that she had returned all of her calls before she took medical leave. (Id.). On October 25, 2013, she was fired. (Id. ¶ 4.8). Rizzo has not given a stated reason for her termination, but she insists that she was discharged due to a perceived disability. (See id.). She contends that Defendant continued its "pattern of discrimination and retaliation" by contesting her application for unemployment benefits, and lodging false allegations about her. (Id. ¶ 4.11). Despite those allegations, Rizzo's application was approved, and she was awarded unemployment benefits. (Id.).

On April 14, 2016, Rizzo filed this lawsuit, alleging that Defendant discriminated against her, on the basis of her claimed disability; that it failed to reasonably accommodate that disability; and that it retaliated against her for seeking unemployment benefits after she was wrongfully terminated. (Complaint). On June 24, 2016, BMI filed this motion to dismiss, and to strike, under Rules 12(b)(6) and 12(f). In its motion, Defendant asks the court to dismiss Plaintiff's claim for compensatory and punitive damages, as well as her jury demand, on the retaliation claim, only. (Motion at 2, 3-4). BMI also contends that the allegations in Paragraph 4.10 of the Complaint are "immaterial, impertinent, [] scandalous, and unnecessary" to Plaintiff's claims, and so it requests that those statements be stricken from the Complaint. (Id. at 2, 5-6). From a review of the pleadings, the evidence submitted, and the applicable law, the court recommends that Defendant's motion be GRANTED, in part, and DENIED, in part.

Standard of Review

Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a complaint for "failureto state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true, and view them in the light most favorable to the plaintiff. Spectrum Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 948 (5^th Cir. 2011) (quoting Lane v. Halliburton, 529 F.3d 548, 557 (5^th Cir. 2008)). "To survive dismissal, a plaintiff must plead 'enough facts to state a claim to relief that is plausible on its face.'" Thompson v. City of Waco, 764 F.3d 500, 503 (5^th Cir. 2014) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a 'probability requirement,' but asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556); see also Twombly, 550 U.S. at 555. ("Factual allegations must be enough to raise a right to relief above the speculative level."). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -but it has not 'shown' -'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (alteration omitted) (quoting FED. R. CIV. P. 8(a)(2)). "Threadbare recital of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678.

In ruling on a Rule 12(b)(6) motion, the court typically may not look beyond the pleadings. Hall v. Hodgkins, 305 F.App'x 224, 227 (5^th Cir. 2008) (citing Cinel v. Connick, 15 F.3d 1338, 1341 (5^th Cir. 1994)). "Pleadings," for purposes of a Rule 12(b)(6) motion, however, include attachments to the complaint, documents incorporated into the complaint by reference, and information subject to judicial notice. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5^th Cir. 2011).Documents "attache[d] to a motion to dismiss are considered to be a part of the pleadings, if they are referred to in the plaintiff's complaint and are central to [the plaintiff's] claims." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5^th Cir. 2000) (internal quotation marks omitted); accord Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5^th Cir. 2003); see Johnson v. Wells Fargo Bank, N.A., 999 F.Supp.2d 919, 926 (N.D. Tex. 2014) ("[D]ocuments are central when they are necessary to establish an element of one of the plaintiff's claims.").

Federal Rule of Civil Procedure 12(f) provides that a district court "may strike from a pleading. . . any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). Although it is within the court's discretion to strike a pleading, that authority should be exercised with caution. United States v. Coney, 689 F.3d 365, 379 (5^th Cir. 2012). A motion to strike based on immateriality or impertinency "'should be granted only when the pleading to be stricken has no possible relation to the controversy.'" Id. (quoting Augustus v. Bd. of Pub. Instruction, 306 F.2d 862, 868 (5^th Cir. 1962)). Because striking a portion of a pleading is a drastic remedy, and, because it is often sought by the movant "simply as a dilatory tactic," motions brought under Rule 12(f) are viewed disfavorably and are rarely granted. Centex Homes v. Lexington Ins. Co, No. 3:13-cv-719-BN, 2014 WL 1225501, at *12 (N.D. Tex. Mar. 25, 2014) (citing Jacobs v. Tapscott, No. 3:04-cv1968-D, 2004 WL 2921806, at *2 (N.D. Tex. Dec. 16, 2004).

Discussion

Motion to Dismiss Under Rule 12(b)(6)

Compensatory and Punitive Damages

Rizzo seeks to recover damages for harm that she allegedly suffered, including "humiliation and embarrassment among [her] co-workers[,] damage to [her] credibility and prospects for futureemployment[,]" as well as for damage to her reputation, mental pain, mental anguish, and other compensatory and punitive damages. (Complaint ¶¶ 7.1, 9.1.4, 9.1.7, 9.1.8, 9.1.9). In this motion, Defendant argues that relief under the Americans with Disabilities Act's ("ADA") retaliation provision is limited to equitable remedies, such as back pay or reinstatement. (Motion at 4). For that reason, BMI contends that Plaintiff may not recover compensatory...