Henry v. Shell USA, Inc. et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ISAAC THOMAS HENRY, JR. 	CIVIL ACTION
VERSUS 	NO: 26-403
SHELL USA, INC. ET AL. 	SECTION “H”
ORDER AND REASONS
Before the Court are Defendant Danos, LLC’s Second Motion to Dismiss
(Doc. 18) and Defendant Shell USA, Inc.’s Motion to Dismiss (Doc. 19). For the
following reasons, the Motions are GRANTED.
BACKGROUND
Plaintiff 	Issac 	Thomas 	Henry, 	Jr. 	alleges 	that 	he 	was 	wrongfully
terminated from his job on the basis of disability.1 Plaintiff began working as
a staffing employee for Danos, LLC (“Danos”) in 2004. For the last six years of
his employment, Danos assigned him to work for Defendant Shell USA, Inc.
(“Shell”). On June 24, 2024, Plaintiff experienced soreness in his left knee
while working aboard Shell’s platform and requested permission to leave the
platform early to be seen by a doctor. After receiving medical care, he obtained
a return-to-work letter from his doctor on July 2, 2024 and was scheduled to
1 Plaintiff initially brought claims alleging age discrimination under the Age
Discrimination in Employment Act (ADEA) and Louisiana Revised Statutes § 23:312.
However, he subsequently withdrew those claims. Docs. 13, 20.
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return to the Shell platform on July 10, 2024. Plaintiff alleges that on July 5,
2024, he received notice from Danos that Shell had released him from his
contract with Shell and that his employment with Danos was also being
terminated. Specifically, “Shell had health concerns about Plaintiff’s ability to
perform his job and that if Plaintiff returned to work, he may fall and hurt
himself.”2
Plaintiff brings claims against Danos and Shell for violations of the
Americans with Disabilities Act (“ADA”), arguing that they perceived him as
having a disability.3 On April 30, 2026, Danos moved for dismissal of Plaintiff’s
claims, and this Court granted its Motion, holding that Plaintiff could not
succeed on a “regarded as” claim under the ADA because the knee soreness he
alleged was “transitory and minor.”4 However, the Court allowed Plaintiff an
opportunity to amend his Complaint to better allege his claim.
Plaintiff filed an Amended Complaint on August 13, 2026. Thereafter,
Danos and Shell separately moved for dismissal of Plaintiff’s ADA claims
pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim for relief that is plausible on its face.”5 A claim is
“plausible on its face” when the pleaded facts allow the court to “draw the
2 Docs. 1, 17.
3 Plaintiff withdrew his claims for disability discrimination under Louisiana Revised
Statutes § 23:323. Doc. 20.
4 Doc. 14.
5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 547 (2007)).
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reasonable inference that the defendant is liable for the misconduct alleged.”6
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.”7 The court need not, however,
accept as true legal conclusions couched as factual allegations.8 To be legally
sufficient, a complaint must establish more than a “sheer possibility” that the
plaintiff’s claims are true.9 If it is apparent from the face of the complaint that
an insurmountable bar to relief exists and the plaintiff is not entitled to relief,
the court must dismiss the claim.10 The court’s review is limited to the
complaint and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint.11
LAW AND ANALYSIS
Danos and Shell move for dismissal of Plaintiff’s ADA claims against
them, arguing that Plaintiff has failed to remedy the deficiencies identified by
this 	Court 	in 	considering 	Danos’s 	first 	Motion 	to 	Dismiss. 	Specifically,
Defendants contend that Plaintiff still fails to state an ADA claim because the
knee injury he alleges was minor and transitory.
Under 	the 	ADA, 	the 	term 	“disability” 	means, 	“with 	respect 	to 	an
individual (A) a physical or mental impairment that substantially limits one
or more major life activities of such individual; (B) a record of such an
6 Id.
7 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
8 Iqbal, 556 U.S. at 678.
9 Id.
10 Lormand, 565 F.3d at 255–57.
11 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
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impairment; or (C) being regarded as having such an impairment.”12 Plaintiff
admits that he does not have a physical or mental impairment. Instead, he
argues that Defendants regarded him as having such a disability under 42
U.S.C. § 12102(1)(C). For purposes of paragraph (1)(C):
(A) An individual meets the requirement of “being regarded as
having such an impairment” if the individual establishes that he
or she has been subjected to an action prohibited under this
chapter because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived
to limit a major life activity.
(B) Paragraph (1)(C) shall not apply to impairments that are
transitory and minor. A transitory impairment is an impairment
with an actual or expected duration of 6 months or less.
“[I]f a plaintiff-employee can show that the defendant-employer perceived the
plaintiff as having an impairment, the plaintiff is covered under the ‘regarded
as’ prong, regardless of how limiting the defendant perceives the impairment
to be.”13
This Court previously held that, under the plain terms of the ADA,
Plaintiff’s Complaint did not state a “regarded as” claim because the knee
soreness he alleged was “transitory and minor” and lasted less than six
months.14 In amending his Complaint, Plaintiff does not amend his factual
allegations on this point. Rather, Plaintiff argues that the Court’s earlier
opinion misconstrued his claim. Plaintiff contends that his knee soreness is not
12 42 U.S.C. § 12102.
13 Mitchell v. Universal Health Servs., Inc., No. CV 15-5963, 2016 WL 3407764, at *2
(E.D. La. June 21, 2016).
14 Doc. 14.
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the alleged perceived disability, rather, Shell’s fear that he may fall and hurt
himself is the alleged perceived disability.
“Where an employer bases a prohibited employment action on an actual
or 	perceived 	impairment, 	. 	. 	. 	the 	employer 	regards 	the 	individual 	as
disabled.”15 “For example, an employer who terminates an employee with
angina from a manufacturing job that requires the employee to work around
machinery, believing that the employee will pose a safety risk to himself or
others if he were suddenly to lose consciousness, has regarded the individual
as disabled.”16 That said, “it may be a defense to a charge of discrimination by
an individual claiming coverage under the ‘regarded as’ prong of the definition
of disability that the impairment is (in the case of an actual impairment) or
would be (in the case of a perceived impairment) ‘transitory and minor.’”17
“Whether a covered entity can ultimately establish a defense to liability is an
inquiry separate from, and follows after, a determination that an individual
was regarded as having a disability.”18
To establish this defense, a covered entity must demonstrate that
the impairment is both “transitory” and “minor.” Whether the
impairment at issue is or would be “transitory and minor” is to be
determined objectively. A covered entity may not defeat “regarded
as” coverage of an individual simply by demonstrating that it
subjectively believed the impairment was transitory and minor;
rather, the covered entity must demonstrate that the impairment
is (in the case of an actual impairment) or would be (in the case of
a perceived impairment) both transitory and minor. For purposes
15 29 C.F.R. § Pt. 1630, App.
16 Id.
17 29 C.F.R. § 1630.15.
18 29 C.F.R. § Pt. 1630, App.
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of this section, “transitory” is defined as lasting or expected to last
six months or less.19
Accordingly, 	“the 	relevant 	inquiry 	is 	whether 	the 	actual 	or 	perceived
impairment on which the employer’s action was based is objectively ‘transitory
and minor.’”20
For example, an employer who terminates an employee whom it
believes 	has 	bipolar 	disorder 	cannot 	take 	advantage 	of 	this
exception by asserting that it believed the employee’s impairment
was transitory and minor, since bipolar disorder is not objectively
transitory 	and 	minor. 	At 	the 	same 	time, 	an 	employer 	that
terminated an employee with an objectively “transitory and minor”
hand wound, mistakenly believing it to be symptomatic of HIV
infection, will nevertheless have “regarded” the employee as an
individual 	with 	a 	disability, 	since 	the 	covered 	entity 	took 	a
prohibited employment action based on a perceived impairment
(HIV 	infection) 	that 	is 	not 	“transitory 	and 	minor.”21
Here, the allegations of the Amended Complaint plainly allege that
Plaintiff’s 	knee 	injury 	was 	objectively 	transitory 	and 	minor. 	As 	for 	the
perceived disability, it alleges that Defendants perceived Plaintiff to have a
disability 	that 	would 	put 	him 	at 	risk 	of 	further 	injury. 	The 	Amended
Complaint, however, does not allege any disability that Defendants perceived
Plaintiff to have, other than his minor knee injury. The Amended Complaint
also does not allege that Defendants perceived Plaintiff’s knee injury to be not
transitory 	and 	minor. 	Indeed, 	it 	alleges 	that 	Defendants 	received
documentation from Plaintiff’s physician that he could return to work without
19 29 C.F.R. § 1630.15
20 29 C.F.R. § Pt. 1630, App.
21 Id.
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limitation 	prior 	to 	his 	termination. 	Plaintiff 	does 	not 	cite 	to 	any 	case
maintaining an ADA “regarded as” claim where the underlying injury was
objectively transitory and minor and there is no allegation that the Defendants
perceived it to be anything other than what it was. Accordingly, Plaintiff has
again failed to allege an ADA claim.22 Having repeatedly failed to “cure
deficiencies by amendments previously allowed,” further leave to amend the
complaint would be futile.23
CONCLUSION
For the foregoing reasons, the Motions are GRANTED. Plaintiff’s claims
are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 14th day of October, 2026.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
22 Plaintiff’s ADA claim against Danos—that it should have known that Shell’s
termination of Plaintiff was in violation of the ADA—likewise fails as it is derivative of
Plaintiff’s ADA claim against Shell.
23 U.S. ex rel. Adrian v. Regents of Univ. of California, 363 F.3d 398, 403 (5th Cir.
2004).
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