Blaise v. Harris et al., No. 3:2016cv00023 - Document 40 (E.D. Va. 2017)
Court Description: MEMORANDUM OPINION. See for complete details. It is so ORDERED. Signed by District Judge Robert E. Payne on 03/06/2017. (mailed copy to pro se Plaintiff) (nbrow)
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Blaise v. Harris et al. Doc. 40 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MAR -6 20l7 DR. DIE K. BLAISE, CLERK, U.S. DISTRICT COlJRT RICHMOND, VA Plaintiff, v. Civil Action No. 3:16cv23 DR. SANDRA HARRIS and VIBRA HOSPITAL OF RICHMOND INC. I I Defendants. MEMORANDUM OPINION This matter is before the Court on the MOTION IN SUPPORT OF MOTION TO DISMISS THE SECOND COMPLAINT reasons set forth below, the MOTION (ECF No. For the 29). IN SUPPORT OF MOTION TO DISMISS THE SECOND COMPLAINT (ECF No. 29) will be granted. BACKGROUND Plaintiff, four count Harris asserted Dr. complaint ("Harris") (1) Die K. Cause of Action: Cause of Action: ("First and First Blaise Vibra Cause Race, of ("Blaise"), Complaint") pro se, against Hospital ("Vibra") Action: Dr. in Harassments; Color and National Origin; Disability; and (4) filed a Sandra which (2) (3) he Second Third Fourth Cause of Action: Vibra Hospital of Richmond Violates its own Policy. Vibra and Dockets.Justia.com Harris moved to dismiss the First Complaint and the motion was granted (ORDER, ECF No. 22}. That ORDER provided: To the extent that count one, "Harassments," seeks relief under Title VII, that claim is dismissed with prejudice. To the extent that count one, "Harassments," seeks relief under 42 § U.S.C. 1981, that claim is dismissed without prejudice. To the extent that count two, "Race, Color, and National Origin," seeks relief under Title VII, that claim is dismissed with prejudice. To the extent that count two, "Race, Color, and National Origin," seeks relief under 42 U.S.C. § 1981, that claim is dismissed without prejudice. To the extent that count two, "Race, Color, and National Origin," seeks relief under the Equal Pay Act, that claim is dismissed with prejudice. To the extent that count three, "Disability, " seeks relief under the Americans With Disabilities Act, that claim is dismissed with prejudice. To the extent that count four, "Vibra Hospital of Richmond Violates its own policies," seeks relief for wrongful termination, that claim is dismissed with prejudice. If Harris chooses to refile the claims which have been dismissed without prejudice (his 42 U.S.C. § 1981 harassment and discrimination claims} he must do so by September 9, 2016. Thereafter, Blaise ("Second Complaint"} CAUSE OF ACTION (HARASSMENTS}}; a new five count complaint against Harris and Vibra alleging: UNDER SECOND (WRONGFUL TERMINATION filed 42 CAUSE USC OF 1981 (WRONGFUL ACTION (Discrimination-Race, UNDER FIRST TERMINATION 42 USC 1981 Color and National Origin}}; THIRD CAUSE OF ACTION UNDER 42 USC 1981 (DEFAMATION}; FOURTH CAUSE OF ACTION UNDER 42 USC 1981 (INTENTIONAL INFLICTION 2 OF EMOTIONAL DISTRESS); FIFTH CAUSE OF ACTION UNDER 42 USC 1981 (NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS) . have moved to dismiss the Second Complaint. Harris and Vibra Although all five counts (Blaise has labeled them "Causes of Action") purported to arise by virtue of 42 U.S.C. federal law claims. § 1981, only the first two are The last three are state law claims. 1 FACTS Blaise is an African-American pharmacist. 1. ) At the time of his employment, (Second Compl. Blaise had a Bachelor of Sciences in Pharmacy and a Doctor of Pharmacy degree. He also alleges twelve years of relevant work including extensive training in clinical pharmacy. (Id. 2013 in Richmond, Virginia. 1 (Id. 1.) 2.) experience, (Id.) Kindred Hospital hired Blaise through PharMerica, May 20, Inc. In the on first Blaise also states that "[m]y wrongful termination violates . . The Virginia Human Right Act § 2.2-3900." (Second Compl. 1.) That Act simply does not apply to Plaintiff's case. Section 2.2-3903(A) of the Act states, in relevant part, "Nothing in this chapter creates, nor shall it be construed to create, an independent or private cause of action to enforce its provisions, except as specifically provided in subsections B and C." Subsection B applies only to employers with between five and twenty employees. Vibra likely staffs more than twenty employees. Subsection C imposes a statute of limitations on any cause of action under the Act of within 300 days from an employee's termination. Defendant filed a complaint over a year after his termination from Vibra. Finally, in Doss v. Jamco, Inc., the Supreme Court of Virginia held that § 2.23900(D) of the Act does not create a common law cause of action based on the public policy reflected in the Act. See 254 Va. 362, 371 (1997). 3 three months of his employment, Blaise received training and positive performance evaluations in the use of the hospital's medication order entry software. On September 1, Vibra 2013, including its pharmacy. (Id.) (Id. , acquired Kindred Hospital, 12.) Vibra replaced the existing medication order entry software with HMS version 1. O ("HMS") . (Id.) HMS differed from the old software because it used paper order entry and a paper Medication Administration Record system rather than electronic order entry. (Id. ) Blaise alleges that all pharmacists received two weeks of intensive training in HMS except the one in which he was employed. he received only fifteen minutes According to Blaise, of (Id.) instruction. Consequently, says Blaise, he learned the program on his own and took longer to process medication orders than the fully-trained pharmacists. (Id.) Blaise worked under Harris, the Director of Pharmacy and a white woman, until 2013. (See id. hired three ,, 1, scheduled medication December. three reduced dispensation (See id. , terminated on December 18, After Vibra rolled out HMS, pharmacists (Id. , those and employment 14.) part-time training on HMS. scheduling his 9.) 20.) who received two Harris weeks of Blaise alleges that Harris started pharmacists Blaise' s errors more hours. in HMS of ten (Id.) from than he Blaise August was made through He claims that several clinical staff 4 made medication errors but that he was the only staff member who received disciplinary action. Blaise alleges that, (Id.) from August through Harris created a hostile work environment. Specifically, he alleges that Harris December 2013, (Second Compl. , 14.) routinely asked him to leave at the end of his shift regardless of whether he completed his work for the day. (Id. ) He further alleges that Harris called him at home to request that he close the pharmacy, then reprimanded him for uncompleted tasks (Id.) Finally, Blaise alleges that the following day. Harris made remarks" and "frequent phone call [sic] threat[s] to overtime." "offensive [with] respect (Id.) According to Blaise, Harris treated him this way due to his race and rumors that he was HIV positive. 3t He 21.) Swendrznski, same way. and alleges that Harris did not treat (Id. ,, Dr. Robert a white pharmacist also working under Harris, (Id. , the 15.) These conclusory allegations are the sole support for the harassment and discrimination claims. Vibra terminated Blaise's employment on December 18, (Id. , 2013. 1.) That was done, according to the Second Complaint, retaliation for (1) rumors that Blaise had HIV and threat Blaise made to take legal action against Vibra. 1, 4.) 5 (2) (Id. in the ,, LEGAL STANDARD Fed. R. Civ. P. 12(b) (6) permits a party dismissal of a claim if the complaint fails upon which relief can be granted." Fed. to move for "to state a claim R. Civ. P. 8(a) (2) requires "a short and plain statement of the claim" showing that the pleader dismiss, a is entitled complaint to must relief. contain "To survive sufficient a motion factual to matter, accepted as true, to 'state a claim to relief that is plausible on its face.' Ashcroft II v. Iqbal, 556 662, U.S. 678(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Courts should allegations in assume the the veracity Complaint, and of should all deny well-pleaded a motion to dismiss where those well-pleaded allegations state a plausible claim for relief. Id. at 679. A claim is "plausible" when the plaintiff pleads facts sufficient to allow the court to draw the reasonable inference alleged misconduct. that Twombly, grant a motion to dismiss, nothing more than the legal defendant is liable for the 550 U.S. at 555. The court should however, where the allegations are conclusions, or where they permit a court to infer no more than a possibility of misconduct. Iqbal, 556 U.S. at 678-79. A court pleadings must liberally. typically construe See Erickson v. a pro Pardus, se plaintiff's 551 U.S. 89, 94 (2007) . Nonetheless, a court is not required to accept a pro se 6 plaintiff's legal conclusions allegations, Twombly, inferences, unreasonable 550 that are U.S. 555, at conclusions, presented as factual "unwarranted or or arguments." E. Shore Mkts., Inc. v. T.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). DISCUSSION The two claims under 42 U.S.C. Causes of Action) plausibility § 1981 (the First and Second fail to allege sufficient facts to meet the standard of Iqbal and Twombly. In the Second Complaint, Blaise does no more than add conclusory statements to the First Complaint discrimination. under Virginia The three law. MOTION TO DISMISS alleging state Accordingly, race-based harassment law are the THE SECOND COMPLAINT claims MOTION time-barred IN (ECF No. and SUPPORT 29) will OF be granted and the action will be dismissed with prejudice. A. First Cause of Action: Harassment Under 42 Under 42 U.S.C. same right in § every 1981, "All persons . State to u.s.c. § 1981 . shall have the make and enforce contracts . . . as is enjoyed by white citizens. " 2 Blaise rests Subsection b of 42 u.s.c. § 1981 further defines "[m]ake and enforce contracts" as including the "making, performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Thus, § 1981 provides a cause of action for claims of racially hostile work environment and racial discrimination, as Blaise alleges in the Second 2 7 his 1981 § harassment claim on the theory that his white supervisor, Harris, created a racially hostile work environment. To properly plead a harassment claim, a plaintiff must plausibly assert that there was harassment and facts could find that such harassment was: on race; and (3) of Spriggs v. Diamond Auto Glass, Given a unwelcome; (2) jury based sufficiently severe or pervasive to alter the conditions 2001) . "(1) from which a employment liberal and create an abusive 242 F.3d 179, reading, the Second atmosphere." 183-84 (4th Cir. Complaint can be However, construed to assert unwelcome harassment by Harris. the Second Complaint does not plead sufficient facts to support a claim that the alleged harassment was "sufficiently severe or pervasive to alter the conditions of employment or an abusive atmosphere." Nor does Second Complaint plausibly plead race-based In harassment. the fact, Blaise does not provide any describing the substance of the "offensive remarks." facts Instead, he only alleges that Harris "frequently called me from home to tell me to close the pharmacy and go home then the next day she reprimanded Compl. me 15 . ) for for [sic] tasks not completed." (Second Although Blaise asserts, in conclusory fashion, that this behavior was animated by race, conclusory allegations Complaint. See CBOCS West, Inc. v. Humphries, 553 U.S. 442, 45051 (2008). 8 of race-based Iqbal. conduct do not pass muster under Twombly and Therefore, the First Cause of Action will be dismissed; as this is Blaise' s second chance, the dismissal will be with prejudice. B. Second u.s.c. Cause of Action: Racial Discrimination plaintiff must allege: (1) minority"; (2) "that the employment was because of discrimination 458 was "that he 345 member of a termination defendants' his race;" intentional." F.3d 332, is a and Jordan (4th Cir. 1981, a § v. 2006), (3) racial of his "that their Alternative Res. overruled on other grounds, Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 Cir. 2015); 6026441, 42 1981 § To state a claim of racial discrimination under Corp., Under Long at *2 v. Teradata (E.D. Va. Corp., Dec. No. 4, 2012); 1:12cv787, see also (4th 2012 WL Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). In 2009) , Francis three other claims, racially v. African-American motivated, they white; and were (3) 588 F.3d police 186, officers 195 (4th alleged, Cir. among that their firing by the Mayor of Baltimore was substantiate their (1) Giacomelli, § in violation of 42 U.S.C. § 1981. To 1981 claims, the officers only alleged that African-American; (2) the defendants were all the defendants did not terminate and physically 9 The Fourth remove white members of the Police Department. Id. Circuit "conclusory held that these insufficient to state a allegations were and 1981 claim." Id. § As the defendants properly point out, the substance of the factual allegations in this case closely parallel those made by the officers alleges "other in he that is In Francis. employees" an made punishment as he did. his Second African-American, errors but did (Second Compl. Complaint, and not 19.) he Blaise claims receive the that same However, the Second Complaint does not identify the job positions were, the severity and frequency of their errors, or their race. 3 (Id.) In sum, "other employees," what their the Second Complaint fails to allege facts sufficient to plausibly plead that Vibra terminated Blaise's employment based on his race, or that any alleged racial discrimination was intentional. Blaise form, but intentional also he alleges fails to discrimination disparate plausibly in the treatment, plead in facts disparity conclusory that or that show the disparity was based on race. The white pharmacist, Swendrznski, and Blaise worked at Vibra for the same length of time but only Swendrznski received a pay raise. (Id.) However, Blaise fails Blaise does allege that Harris herself made a prescription error, but she was his supervisor and he does not link any aspect of his termination claim to the error allegedly made by Harris. (Second Compl. 13, 19.) 3 10 to allege facts that showing Vibra in engaged race discrimination in deciding to of fer Swendrznski a raise but not offering one to Blaise. (Id.) As did the plaintiffs in Francis, Blaise confuses correlation between race and his Defendants with causation. 4 treatment by The Second Cause of Action will also be dismissed with prejudice. C. Third Cause of Action: Defamation Next, Blaise presents a claim for defamation. The statute of limitation for injuries resulting from defamation is one year after the cause of action accrued. (2016). 18, Blaise' s 2013. employment with Vibra (Second defamatory conduct (Id. 3.) Va. Compl. 1.) (without his 8.01-247.1 § terminated on December Blaise lasted until Assuming Code Ann. final deciding) states that day of that employment. the claim can be related back to the First Complaint, Vibra's defamation Blaise first filed this action on March 17, 2016, well over a year after the cause of action, of Action is if any, accrued. time-barred under Accordingly, the Third Cause Virginia law and will be dismissed with prejudice. Blaise also states that Vibra terminated his employment in retaliation to rumors that he was HIV positive and threatening to take legal action against Vibra because of those rumors. (Id. 1) . This type of allegation is not contemplated within the claims that are available under § 1981. 4 11 D. Fourth and Fifth Causes of Action: Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress Blaise emotional alleges distress claims and for the the intentional negligent distress by the defendants. {Id. infliction of infliction of 37-43.) emotional Assuming {without deciding) that Blaise has a colorable claim under Virginia law, there a injury is two-year torts. limitation emotional statute Va. applies Code to distress distress. See, period. on March limitations Ann. claims and 8.01-243. § of for intentional negligent infliction all personal The two-year infliction of of emotional Washington v. Vertiss, LLC, No. 1:14cvl250, 2015 WL 965931, at *3 filed of 17, Accordingly, {E.D. Va. Mar. 4, 2016, long past 2015). This action was the two-year limitation these claims also are time-barred under Virginia law, and the Fourth and Fifth Causes of Action will be dismissed with prejudice. 12 CONCLUSION For the foregoing reasons, the MOTION IN SUPPORT OF MOTION TO DISMISS THE SECOND COMPLAINT (ECF No. 29) will be granted. The action will be dismissed with prejudice. The Clerk is directed to send a copy of the Memorandum Opinion to Dr. Die K. Blaise. It is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: March 2017 1 ---fe 13
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