Opinion
CIVIL ACTION NO. 99-3603 SECTION "I" (5)
June 20, 2000
ORDER AND REASONS
Before the court is the motion of defendant Alton Ochsner Medical Foundation (Ochsner) to dismiss plaintiff Mary Malakoff'`s claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Ochsner seeks in the alternative dismissal via summary judgment under Federal Rule of Civil Procedure 56. As the court has considered exhibits in the record, the court will review the motion under the standards for summary judgment.
The complaint alleges that on July 1, 1998, Ochsner gave Mary Malakoff an educational grant and an appointment as an intern to continue her study of psychiatry. On December 11, 1998, Ochsner notified Malakoff in writing that it would not renew her internship due to poor performance.
Malakoff alleges that her unsatisfactory performance was due to a hearing disability and Ochsner's failure to grant her requests for "basic accommodations" which she believes would have eliminated or alleviated any cause for her "dismissal." Complaint, ¶ X and XI. On these grounds, she asserted claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., and the Louisiana Employment Discrimination Law, La. Rev. Stat. § 23:301, et seq. She also claims breach of contract and intentional infliction emotional distress under Louisiana law.
Ochsner seeks dismissal of Malakoff's federal and state law claims of disability discrimination due to her failure to exhaust administrative remedies and failure to file her ADA claim with the EEOC within the applicable statute of limitations. Ochsner also contends that the terms of the contract with Malakoff fail to support her claim for breach of contract. Ochsner further contends that Malakoff failed to state a claim for intentional infliction of emotional distress.
ADA and Rehabilitation Act
It is undisputed that Malakoff filed this lawsuit without first filing a charge with the EEOC or any state agency. After filing this lawsuit on November 30, 1999, Malakoff filed a claim with the EEOC on January 7, 2000.
Both the ADA and the Rehabilitation Act require a plaintiff to exhaust her administrative remedies as a prerequisite to filing in federal court. See Dao v. Auchan Hypermarket, 96 F.3d 787 (5th Cir. 1996);Poynter v. U.S., 55 F. Supp.2d 558, 563 (W.D. La. 1999) (citing Prewitt v. U.S. Postal Serv., 662 F.2d 292, 304 (5th Cir. 1981).
As Malakoff filed this lawsuit without first filing a charge with the EEOC, her claims under the ADA and the Rehabilitation Act are barred.
In addition, the undisputed facts show that Malakoff's ADA claim is time-barred. Under the ADA, where the unlawful practice occurred in a "deferral state" the time limit for filing a charge with the EEOC is 300 days. 29 U.S.C. § 626 (d); Webb v. Cardiothoracic Surgery Associates of North Texas, 139 F.3d 532, 537 (5th Cir. 1998) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-94, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)); Griffin v. City of Dallas, 26 F.3d 610 (5th Cir. 1994).
A deferral state is one in which (1) a state law prohibiting age discrimination in employment is in effect and (2) a state authority has been set up to grant or seek relief from such discriminatory practice. 29 U.S.C. § 626 (d) and 633(b).
Louisiana has had since 1994 its own state agency, the Louisiana Commission on Human Rights, for enforcement of compliance with state laws prohibiting discrimination in employment. See La. Rev. Stat. §§ 51:2231, 2233 (establishing the Commission); La. Rev. Stat. § 23:323 (prohibiting disability discrimination in employment). Louisiana is thus a "deferral state," and the filing period is expanded to 300 days. See Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998); Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988).
The date from which the 300-day filing period begins to run is December 1, 1998, the date Malakoff was orally advised that her internship would not be renewed. As of that date, Malakoff was aware of the adverse employment decision, and the facts that she would allege in support of her cause of action were or should have been apparent to her. See Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir. 1975). Therefore, she would have had to file her charge with the EEOC within 300 days from December 1, 1998. She did not file her charge until January 7, 2000, over a year after the alleged discriminatory act.
The court finds that Malakoff's ADA claim is barred by her failure to file a charge of discrimination with the EEOC within 300-days of the date of the alleged discrimination.
Even using the later date when Malakoff was notified in writing that her internship would not be renewed, December 11, 1998, her ADA claim is prescribed.
Louisiana Employment Discrimination Law
Malakoff's claim for discrimination under Louisiana law is procedurally barred. She offered no evidence to show that she complied with the state statutory requirements of providing the person who has allegedly discriminated with detailed written notice of the alleged discrimination at least thirty days before initiating court action, and making a good faith effort to resolve the dispute before court action. See La. Rev. Stat. § 23:303(C) (formerly § 23:325(C)).Breach of Contract
Malakoff's claim for breach of the July 1, 1998 contract between herself and Ochsner is without any evidentiary support. The contract between Malakoff and Ochsner provided that the duration of her appointment and grant "shall be for a 26 week period commencing on July 1, 1998 and terminating no later than December 31, 1998." Pursuant to that contract, Ochsner agreed to provide "(a) a suitable environment for medical education experience; and (b) a training program that meets the standards of the Essentials of Accredited Residencies as prepared by the Accreditation Council for Graduate Medical Education [ACGME]."
Malakoff contends that the contract was governed by Ochsner's Guidelines for the Probation and Termination of Residents which it allegedly developed pursuant to ACGME standards. She contends that Ochsner breached those Guidelines, and therefore the contract, by failing to give notice of deficiency or opportunity for remediation. She further contends that Ochsner breached the contract by failing to provide a suitable environment for medical educational experience.
The contract does not incorporate or reference the Guidelines. There is no evidence to show that the Guidelines are "Essentials of Accredited Residencies as prepared by the [ACGME]" which Ochsner contractually agreed to apply as the standard for its training program. Nor do the Guidelines themselves contain the requisites for formation of a contract. The Guidelines are more in the nature of a directive or policy statement. The court finds that the Guidelines do not evidence a contractual relationship. See e.g., Schwarz v. Administrators of Tulane Educ. Fund, 699 So.2d 895 (La.App. 4th Cir. 1987) (failure to grant tenure to professor upon terms and conditions set forth in faculty handbook did not breach any contract between university and professor where the handbook was a unilateral expression of policy and did not represent a meeting of the minds); Keller v. Sisters of Charity of Incarnate Word, 597 So.2d 1113 (La.App. 2d Cir. 1992) (personnel manual did not create a contractual relationship between employee and employer).
In addition, the Guidelines address the termination of a resident through procedures such as resignation, probation, or dismissal. Malakoff was not terminated during her internship, but was allowed to complete the full term of her appointment.
There is no evidence of a contract promising Malakoff notice of deficiencies, opportunity for remediation, or renewal of her contract. Malakoff completed the full term of her internship appointment — a 26-week period commencing on July 1, 1998 terminating no later than December 31, 1998.
In addition, Malakoff offered no evidence to show that Ochsner failed to provide a suitable environment for medical educational experience.
Accordingly, the court finds that Malakoff has failed to show any genuine issue of material fact in support of her breach of contract claim.
Intentional Infliction of Emotional Distress
Malakoff raised a claim for intentional infliction of emotional distress in her opposition memorandum. Assuming that Malakoff would properly assert this claim in an amended complaint, the court finds no evidence in the record to support outrageous conduct as required under Louisiana law. See White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991) (seminal case on the tort of intentional infliction of emotional distress requiring among other facts, extreme and outrageous conduct by the defendant, including a desire to inflict or knowledge that severe emotional distress would be substantially certain to result from the conduct). Again, Malakoff has failed to show any genuine issue of material fact to support of her claim.
Accordingly,
IT IS ORDERED that defendant Alton Ochsner Medical Foundation's Motion to Dismiss or Alternatively, Motion for Summary Judgment is GRANTED under Federal Rule of Civil Procedure 56, dismissing all of plaintiff's claims in this action.