     Case: 11-10279     Document: 00511781555         Page: 1     Date Filed: 03/08/2012




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

                                                                            FILED
                                                                           March 8, 2012

                                       No. 11-10279                        Lyle W. Cayce
                                                                                Clerk

MELINDA MORA,

                                                  Plaintiff - Appellant
v.

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER,

                                                  Defendant - Appellee



                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:09-CV-927


Before STEWART, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
        Melinda Mora appeals the district court’s dismissal of her lawsuit against
her former employer, the University of Texas Southwestern Medical Center
(“UTSMC”), under Titles II and V of the Americans with Disabilities Act
(“ADA”). Because the district court correctly determined that Mora’s amended
complaint failed to state a claim for which relief can be granted, see
FED. R. CIV. P. 12(b)(6), we AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                       FACTS AND PROCEEDINGS
      Mora was employed by UTSMC, a state entity, as a program manager
from 1996 until 2007. Mora alleges that she was fired from her job for being an
alcoholic. Before being fired, Mora had received treatment for alcoholism from
UTSMC’s Employee Assistance Program (“EAP”). Mora was fired, in part, for
being intoxicated on the job during February of 2007, after her supervisors were
aware that she had been receiving treatment for alcoholism.
      After her termination, Mora filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”), then brought a lawsuit against UTSMC
alleging (1) employment discrimination on the basis of a disability under Title
I of the ADA and (2) retaliation under Title V of the ADA. UTSMC moved to
dismiss the Title I claims on the now-uncontroverted ground that, as the
Supreme Court has directly held, Title I of the ADA does not validly abrogate the
states’ sovereign immunity, meaning that Title I claims cannot be heard by the
federal courts. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374
(2001). The district court granted UTSMC’s motion, but permitted Mora to
replead her claim under Title II of the ADA, which prohibits discrimination on
the basis of disability in the provision of government services and programs.
Mora’s amended complaint alleged that (1) her removal from the EAP following
her dismissal constituted wrongful exclusion from a government service or
program on the basis of a disability in violation of Title II of the ADA, and (2)
after her firing, UTSMC retaliated against her in violation of Title V of the ADA
by “disparaging” her to prospective employers. The district court dismissed all
of Mora’s claims with prejudice pursuant to Rule 12(b)(6) and entered final
judgment against her. This timely appeal followed.
                          STANDARD OF REVIEW
      We review a district court’s ruling on a 12(b)(6) motion to dismiss de novo.
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011). We

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accept all well-pleaded facts as true and view those facts in the light most
favorable to the plaintiff, but “we are not bound to accept as true a legal
conclusion couched as factual allegation.” Id. (quoting Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009)) (internal quotation marks omitted). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
                                  DISCUSSION
      1. Title II Claims
      Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. §12132. Mora
contends that her removal from the EAP constituted a violation of this provision
and argues that her amended complaint pled sufficient facts to support her Title
II claim. However, Mora’s amended complaint was deficient for at least two
reasons: (1) it failed to plead adequate facts to show that she has a “disability”
within the meaning of the ADA, and (2) it failed to allege facts showing that she
was “qualified” to receive EAP services even after her termination.
      a. “Disability”
      Mora’s complaint failed to adequately plead that she has a “disability” for
purposes of the ADA. The ADA defines “disability” as “(A) a physical or mental
impairment that substantially limits one or more of the major life activities of
such individual; (B) a record of such an impairment; or (C) being regarded as
having such an impairment.” 42 U.S.C. §12102(1). Although Mora alleged that
she is an alcoholic and recited that her alcoholism impairs a major life activity,
she did not specify which of her “life activities” is substantially limited. This is
fatal to stating a valid claim for relief. As the Supreme Court has explained, a

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valid complaint must do more than give “a formulaic recitation of the elements
of a cause of action.” Twombly, 550 U.S. at 555.
      At best, Mora’s complaint alleges only that she was (or was regarded as
being) substantially impaired in her ability to do her job with UTSMC, but
“[w]hen the major life activity under consideration is that of working, the
statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs
allege they are unable to work in a broad class of jobs.” Sutton v. United Air
Lines, Inc., 527 U.S. 471, 491 (1999). Because her complaint, even liberally
construed, alleged only that she was, or was regarded as being, impaired in the
performance of her specific job with UTSMC, her pleadings are legally
insufficient. See Kemp v. Holder, 610 F.3d 231 (5th Cir. 2010).
      b. “Qualified”
      Mora’s complaint also failed to allege facts that, if true, would establish
that she was relevantly “qualified” to receive continued treatment in the EAP.
A “qualified individual with a disability” is
      an individual with a disability who, with or without reasonable
      modifications to rules, policies, or practices, the removal of
      architectural, communication, or transportation barriers, or the
      provision of auxiliary aids and services, meets the essential eligibility
      requirements for the receipt of services or the participation in
      programs or activities provided by a public entity.
42 U.S.C. §12131(2) (emphasis added). At the time she was denied EAP services,
Mora no longer met the “essential eligibility requirements” for the receipt of such
services because UTSMC understandably provides EAP services only to its
employees, and Mora was no longer employed by UTSMC.
      Mora argues that her claim should be permitted because the reason for her
ineligibility was her discriminatory termination. But the language of Title II
does not permit Mora’s attempt to shoehorn what is essentially a Title I claim
into Title II. Title II forbids denying services to a person with a disability “by


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reason of such disability.” UTSMC did not deny Mora alcohol treatment “by
reason of” her alcoholism. As the state correctly argues,
      Title II does not require public entities to investigate the reasons
      behind an individual’s ineligibility, nor does it contain an exception
      that makes an [sic] person “eligible” if the reason for their [sic]
      ineligibility is a discriminatory act. Instead, Title II requires that
      the denial of state services itself be “by reason of such disability.”
The language of Title II simply does not encompass Mora’s claim that she was
wrongly fired for being an alcoholic.
      2. Title V Claims
      Mora’s complaint also failed to adequately plead a claim under Title V. A
claim of unlawful retaliation under the ADA requires a showing that (1) the
plaintiff engaged in an activity protected by the ADA, (2) she suffered an adverse
employment action, and (3) there is a causal connection between the protected
act and the adverse action. Seaman v. CSPH, 179 F.3d 297, 301 (5th Cir. 1999).
The allegations in Mora’s amended complaint relating to her Title V claim
stated, in their entirety:
             [UTSMC] retaliated against Mora for exercising her rights
      under the ADA in violation of 42 U.S.C. § 12203(a). These Title V
      retaliation claims are based on actions taken by [UTSMC] in
      violation of Title II of the ADA.
             [UTSMC] has disparaged and continues to disparage Mora to
      potential employers for whom Mora has sought to gain employment,
      and thereby prevented Mora from gaining employment with a Fort
      Worth hospital. Furthermore, [UTSMC’s] decision to terminate
      Mora was based in part on her complaints about [UTSMC’s]
      unwillingness to accommodate her disability limitations.
      These allegations fail to state a claim under Article V. With respect to her
allegation that UTSMC “disparaged” her to potential employers after she was
fired, Mora’s complaint does not identify any “protected activity” for which
UTSMC was supposedly retaliating against her. On appeal, Mora argues that
UTSMC’s disparagement of her was retaliation against her filing of a charge


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with the Texas Workforce Commission and the EEOC, but her complaint in the
district court alleged no facts that indicate a “causal connection” between these
filings and UTSMC’s alleged disparagement of her.
       Mora’s complaint can be read as asserting that UTSMC retaliated against
her by firing her for complaining about its unwillingness to accommodate her
disability. But this allegation is contradicted by the other facts alleged in the
complaint, making the claim implausible on its face. The complaint sets forth no
facts suggesting that Mora ever complained about any “unwillingness to
accommodate her disability.” Mora only complained after she was fired and
removed from the EAP. Indeed, before she was fired, UTSMC was
accommodating her disability by providing her with treatment for alcoholism
through the EAP. Thus, Mora failed to plead a valid claim under Title V.1
                                     CONCLUSION
       For the reasons set forth above, the judgment of the district court is
AFFIRMED.




       1
          Because we agree with the district court’s determination that Mora failed to state a
valid claim under the ADA, we need not address UTSMC’s argument that Mora’s claims under
Title II and Title V are barred by state sovereign immunity.

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