     Case: 14-30330      Document: 00512773882         Page: 1    Date Filed: 09/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit

                                                                               FILED
                                                                         September 18, 2014
                                    No. 14-30330
                                  Summary Calendar                          Lyle W. Cayce
                                                                                 Clerk


PATRICK V. LEAUMONT,

                                                 Plaintiff - Appellant
v.

CITY OF ALEXANDRIA,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:13-CV-2397


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       Patrick V. Leaumont appeals the district court’s orders denying his
motion to remand and granting summary judgment in favor of the City of
Alexandria in this employment discrimination case. For the reasons that
follow, we AFFIRM the judgment of the district court.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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           I.    FACTUAL AND PROCEDURAL BACKGROUND
      Patrick V. Leaumont has been employed by the City of Alexandria (the
“City”) as a Bus Department Transit Manager for approximately the past
twenty years.    In that position, he performs safety-sensitive functions,
including controlling the dispatch and movement of revenue service vehicles.
Leaumont is subject to random drug testing under the City’s Substance Abuse
Policy and Procedures.
      On July 10, 2012, Elaine McGee, a Personnel Analyst for the City,
notified Leaumont that he had been selected to undergo random drug testing
that day. Leaumont failed to report for the test. The following day, Leaumont
called McGee and informed her that he had forgotten to take the drug test.
She set up another drug test appointment for that day, July 11, 2012, which
Leaumont attended. Nonetheless, the City considered Leaumont’s failure to
report for the July 10 drug test a “refusal to test.” By letter dated July 12,
2012, the City’s Director of Human resources, Alainna Mire, notified Leaumont
that he was removed from safety-sensitive functions due to his refusal to test.
The letter further informed Leaumont that he would be eligible for
reinstatement with respect to those functions only after (1) a substance abuse
professional evaluated him and deemed him eligible to return to work; and (2)
he provided a negative drug test sample.
      On July 31, 2012 the City received a release from a substance abuse
professional who evaluated Leaumont, stating that Leaumont was eligible to
return to safety-sensitive functions. Leaumont then passed a drug test and,
on August 3, 2012, the City reinstated Leaumont for performance of safety-
sensitive functions.
      On July 12, 2013, Leaumont filed this employment discrimination
lawsuit in Louisiana state court, seeking compensatory damages and an
injunction expunging his personnel records of any reference to the July 10
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refusal to test. The City removed the action on August 1, 2013 to the United
States District Court for the Western District of Louisiana. Leaumont filed a
motion to remand, which was denied by both the magistrate judge, and, on
appeal of that decision, the district court. The City moved for judgment on the
pleadings as to all claims, which the district court converted to a motion for
summary judgment. 1 The district court then granted the City’s motion on
various grounds and entered judgment in its favor. Leaumont appealed.
                           II.    STANDARD OF REVIEW
       We review de novo a district court’s denial of a motion to remand.
McDonal v. Abbott Labs., 408 F.3d 177, 182 (5th Cir. 2005).                  Removal is
appropriate with respect to “any civil action brought in a State court of which
the district courts of the United States have original jurisdiction.” 28 U.S.C.
§ 1441. The burden of establishing jurisdiction is on the party seeking removal.
Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993).
       We also review de novo a district court’s order granting a defendant’s
motion for summary judgment and apply the same standard as did the district
court. See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir.
2006). “Summary judgment is appropriate ‘if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Johnston & Johnston v. Conseco Life Ins. Co.,
732 F.3d 555, 561 (5th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). We view the
evidence in the light most favorable to the nonmovant. United Fire & Cas. Co.
v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006).




      1The district court determined that its disposition of the motion would require it to
examine matters outside the scope of the pleadings.
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                                  III.   DISCUSSION
       A.     Motion to Remand
       Leaumont contends that there is no subject matter jurisdiction over this
action and that, therefore, the lower court improperly denied his motion to
remand. The lower court found that it had jurisdiction based on the presence
of a federal question.
       District courts have original jurisdiction in all cases “arising under the
Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, i.e., cases
involving a federal question. “A case arises under federal law within the
meaning of § 1331 . . . if a well-pleaded complaint establishes either that
federal law creates the cause of action or that the plaintiff’s right to relief
necessarily depends on resolution of a substantial question of federal law.”
Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 689–90 (2006)
(citation, quotation marks, and brackets omitted).              However, “[e]ven if a
plaintiff has a federal cause of action, he ‘may avoid federal jurisdiction by
exclusive reliance on state law.’” MSOF Corp. v. Exxon Corp., 295 F.3d 485,
490 (5th Cir. 2002) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987)).
       The lower court determined that this case arises under federal law
because Leaumont’s petition 2 asserts a claim under the Americans with
Disabilities Act (“ADA”) of 1990, 42 U.S.C. § 12101, et seq. We agree. The
petition expressly states that “the above actions by the City are a violation of
[La. Rev. Stat. Ann. §§] 23:322 & 323 and for [sic] 42 USC § 12101, et seq.,
particularly §[]12114.” (emphasis added). These are the only claims mentioned
in the petition, and they clearly serve as the basis of this lawsuit. Leaumont



       2Louisiana law refers to a complaint as a petition; they serve the same purpose. See
La. Code Civ. Proc. Ann. art. 854.
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does not qualify or limit his affirmative assertion of an ADA claim elsewhere
in the petition. Leaumont contends, however, that his citation to the ADA was
intended merely as a reference to aid in the analysis of his claims under the
Louisiana Employment Discrimination Law (“LEDL”), La. Rev. Stat. Ann.
§ 23:323. But the petition, fairly read, asserts independent claims under both
the LEDL and the ADA. Leaumont’s subjective intent is irrelevant, as the
jurisdictional analysis depends on the “face of the plaintiff’s properly pleaded
complaint.” Caterpillar Inc., 482 U.S. at 392. For this same reason, we must
ignore Leaumont’s failure to file a charge before the Equal Employment
Opportunity Commission (EEOC), which Leaumont offers in support of his
intent not to assert an ADA claim. 3
       Moreover, because Leaumont asserts a federal claim on the face of his
petition, his reliance on cases in which the resolution of a state claim depends
on the resolution of a federal issue is misplaced. See Empire Healthchoice
Assur., Inc., 547 U.S. at 689–90 (“A case arises under federal law . . . if a well-
pleaded complaint establishes either that federal law creates the cause of
action or that the plaintiff’s right to relief necessarily depends on resolution of
a substantial question of federal law.”) (emphasis added) (citations, quotation
marks, and brackets omitted); French v. EMC Mortgage Corp., No. 13-50417,
2014 WL 1679135, at *1, --- F. App’x --- (5th Cir. Apr. 29, 2014) (unpublished)
(“The rule from this line of authority . . . applies to cases that do not plead a
cause of action arising under a federal statute, but where federal jurisdiction
may exist over claims created by state law that ‘incorporate federal standards
or require the interpretation of federal law.’” (quoting Howery v. Allstate Ins.



       3  Further, “filing a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court.” Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982).

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Co., 243 F.3d 912, 917 (5th Cir. 2001))). 4 Therefore, there is federal question
jurisdiction over this action, and the lower court’s denial of the motion to
remand was appropriate.
       B.     Motion for Summary Judgment
       On appeal, Leaumont also challenges the district court’s grant of
summary judgment in the City’s favor on his ADA and LEDL claims. As
discussed above, Leaumont concedes that he never filed a charge with the
EEOC prior to filing suit, as required by 42 U.S.C. § 2000e-5(e)(1). Summary
judgment was therefore warranted as to the ADA claim. See Dao v. Auchan
Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (“It is undisputed that Dao did
not file a disability discrimination charge with the EEOC or with a state or
local agency. Accordingly, the district court did not err by dismissing her ADA
claim.”).
       The district court also properly granted summary judgment as to the
ADA and LEDL claims because Leaumont failed to meet his burden of proof.
Under both statutes, a disability discrimination claim can succeed only if the
plaintiff is “qualified” for the position, 42 U.S.C. § 12112(a); La. Rev. Stat. Ann.
§ 23:323(A), i.e., if the plaintiff can perform the essential functions of the
position, 42 U.S.C. § 12111(8); La. Rev. Stat. Ann. § 23:322(8). Accordingly, a
plaintiff who fails to show that he is qualified for the position has failed to
establish a prima facie case under both the ADA and the LEDL. See Daigle v.
Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995); Conine ex rel. Estate of
Addie v. Universal Oil Prods. Co., 42-409 (La. App. 2 Cir. 9/26/07); 966 So. 2d
763, 767, writ denied, 2007-2114 (La. 1/7/08); 973 So. 2d 729.


       4 In addition, whether a private cause of action exists for the federal claim is relevant
only to this inapplicable line of cases. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S.
804, 810–12 (1986). In any event, contrary to Leaumont’s assertion, there is a private cause
of action for violations of the ADA. 42 U.S.C. § 12188(a)(1).

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                                 No. 14-30330
      Here, the district court correctly determined that Leaumont was not
qualified to perform the safety-sensitive functions of a Bus Department Transit
Manager. Indeed, Leaumont was not qualified as a matter of law, as federal
regulations precluded him from exercising those duties due to his refusal to
test. See 49 C.F.R. § 655.49(a) (“No employer shall permit an employee who
refuses to submit to such a [drug] test to perform or continue to perform safety-
sensitive functions.”). Nor was the City permitted to allow Leaumont to return
to performance of those duties until Leaumont received approval from a
substance abuse professional and submitted a negative drug test. See 49
C.F.R. § 40.305(a).
      Leaumont argues that his missed July 10 drug test should not have been
deemed a “refusal to test.” Federal regulations define a “refusal to test” as a
“[f]ail[ure] to appear for any test . . . within a reasonable time, as determined
by the employer, consistent with applicable DOT agency regulations, after
being directed to do so by the employer.” 40 C.F.R. § 40.191(a)(1) (emphasis
added). Here, the City’s “Substance Abuse Policies and Procedures” state that
“[a]n employee who has been notified that he or she has been selected for
testing shall be required to report immediately to the collection site.”
Leaumont does not dispute that he failed to report to the collection site
immediately, but instead took his test the day after he was notified. We agree
with the lower court that although requiring an employee to report to the
testing site “immediately” after being notified of the test may be unreasonable
under certain hypothetical circumstances, it is not unreasonable to require the
employee to report within the same day he is notified. Leaumont failed to do
so. Moreover, Leaumont’s argument that there is an exception to this reporting
requirement where “unforeseen circumstances” prevent an employee from




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                                      No. 14-30330
attending a scheduled test is unsupported by any caselaw. 5 Even if it were,
such an exception would not apply here, as Leaumont concedes he merely
“forgot” to go to the test. There is also no support for Leaumont’s argument
that the City’s decision to reschedule the July 10 appointment for July 11
somehow waived or nullified the federal regulations’ requirements. Therefore,
pursuant to those regulations, Leaumont’s refusal to test rendered him
unqualified to perform safety-sensitive functions.                Accordingly, Leaumont
could not establish a prima facie case under the ADA and the LEDL, and the
lower court appropriately granted summary judgment in favor of the City.
                                  IV.     CONCLUSION
         For the aforementioned reasons, we AFFIRM the judgment of the district
court.




         Leaumont cites to Duchek v. Nat’l Transp. Safety Bd., 364 F.3d 311, 312 (D.C. Cir.
         5

2004), in support of this argument, but that case is inapposite. There, the court addressed a
unique situation where the employee was responsible for scheduling his own drug test. Id.
at 312–13. The court determined that the employee had not refused to test because the test
had never actually been scheduled—not because of any unforeseen circumstances preventing
the employee from attending the test on a scheduled date. See id. at 315–17.
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