Blaise v. Sandra Harris, & Vibra Hosp. of Richmond, LLC

DIE K. BLAISE, Plaintiff, v. SANDRA HARRIS, andVIBRA HOSPITAL OF RICHMOND, LLC Defendants.

Civil Action No. 3:16CV0023

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

FILED: August 11, 2016

August 10, 2016

MEMORANDUM OPINION

This matter is before the Court on Defendants' MOTION TO DISMISS (Docket No. 10). For the reasons stated below, Defendants' MOTION TO DISMISS will be granted. (Docket No. 10).

BACKGROUND

The Complaint states that Die K. Blaise ("Blaise") was a pharmacist at Vibra Hospital of Richmond, LLC ("Vibra") beginning on May 20, 2013. (Compl. 1). On September 1, 2013, Vibra replaced its pharmacy entry system. (Compl. 2). Blaise states that all pharmacists other than himself were trained extensively in the new system, and that, as a result of Blaise's abbreviated training, "it took a little[] longer to process some medication orders" using the new system. (Compl. 3). The training program notwithstanding, "[m]edication errors [were] a system wide issue" after the system switch. (Compl. 3). During the transition to the new system, the Director of Pharmacy, Dr. Sandra Harris ("Harris") began to schedule other pharmacists more frequently and to schedule Blaise less frequently. (Compl. 3).

On December 18, 2013, Blaise's employment was terminated for "medication errors." (Compl. 1-2). Blaise states that these "medication errors" were fabricated by Harris to "terminate [Blaise's] position as a pharmacist" and "to dilute a discrimination case" (Compl. 2), and that any medication errors that did occur also occurred for other pharmacists who were not fired. (Compl. 2-3).

At an unspecified point, Harris filed a complaint with the Virginia Board of Pharmacy based on Blaise's performance at Vibra. (Compl. 2). The Board of Pharmacy notified Blaise of Harris's complaint on February 27, 2015. (Compl. 2). Blaise states that he was never accused of patient safety concerns while at Vibra. (Compl. 2).

On August 4, 2015, Blaise filed a charge of discrimination with the EEOC. The Complaint states that the EEOC issued a Right to Sue notice on December 28, 2015. (Compl. 2).¹

On January 12, 2016, Blaise filed a Motion to Proceed In Forma Pauperis and a proposed Complaint. (Docket No. 1). OnMarch 17, 2016, Blaise paid the civil filing fee (Docket No. 4) and filed his Complaint (Docket No. 5).

The Complaint alleges four claims, titled "Harassments," "Race, Color, and National Origin," "Disability," and "Vibra Hospital of Richmond Violates its own policy." (Compl. ¶ 3-4).

Harris and Vibra (collectively "Defendants") filed this motion to dismiss under Fed. R. Civ. P. 12(b)(6) (Docket No. 10) on several grounds, including that all claims are time-barred, that Blaise has not pled membership in a protected class, and that Harris is not liable in her individual capacity. (Def.'s Mem. in Supp. of Def.'s Mtn. to Dismiss, Docket No. 11) ("Def.'s Mem.").

LEGAL STANDARD

A. Pro Se Litigants Are Entitled to Liberal Construction

As a threshold matter, the Court recognizes that Blaise's pro se status entitles his pleadings to a liberal construction. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Nevertheless, "[e]ven pro se plaintiffs must recognize Rule 8's vision for 'a system of simplified pleadings that give notice of the general claim asserted, allow for the preparation of a basic defense, narrow the issues to be litigated, and provide a means for quick dispositions of sham claims." Sewraz v. Guice, 2008 WL3926443, at *2 (E.D. Va. Aug. 26, 2008) (quoting Prezzi v. Berzak, 57 F.R.D. 149, 151 (S.D.N.Y. 1972)). The requirement of liberal construction 'does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. Skelton v. EPA, 2009 WL 2191981, at *2 (D.S.C. July 16, 2009) (citing Weller v. Dept. of Soc. Servs., 901 F.2d 387 (4th Cir. 1990)). Finally, the basic pleading standards set by Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) that foreclose conclusory, factually unsupported claims apply to pro se litigants.

B. Fed. R. Civ. P. 12(b)(6)

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) challenges the legal sufficiency of a complaint. Jordan v. Alternative Resources Corp., 458 F.3d 332, 338 (4th Cir.2006). Fed. R. Civ. P. 8(a)(2) "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (citing Twombly, 550 U.S. at 555).

When deciding a motion to dismiss under Rule 12(b)(6), a court must "draw all reasonable inferences in favor of the plaintiff." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,591 F.3d 250, 253 (4th Cir. 2009). However, while the court must "will accept the pleader's description of what happened" and "any conclusions that can be reasonably drawn therefrom," the court "need not accept conclusory allegations encompassing the legal effects of the pleaded facts," Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.1998); Chamblee v. Old Dominion Sec. Co., L.L.C., No. 3:13CV820, 2014 WL 1415095, *4 (E.D. Va. 2014). Nor is the court required to accept as true a legal conclusion unsupported by factual allegations. Iqbal, 556 U.S. at 678-79. "Twombly and Iqbal also made clear that the analytical approach for evaluating Rule 12(b)(6) motions to dismiss requires courts to reject conclusory allegations that amount to mere formulaic recitation of the elements of a claim and to conduct a context-specific analysis to determine whether the well-pleaded factual allegations plausibly suggest an entitlement to relief." Wright & Miller, supra; Chamblee, supra.

ANALYSIS

A. Harassment

The first count, labeled "Harassment," alleges that Blaise's supervisor, Harris,

made my work environment so uncomfortable and hostile that [I] was prone to mistake. Harassments include offensive remarks and frequent phone calls in respect to overtime ... Harris regularly ... asked me to leaveat the end of my shift regardless of the workload to be completed. This cause[d] me to rush to complete the daily tasks and result[ed] in unsafe patient care ... [Harris] never treated the other pharmacist Mr. Robert Swendrznski the same way as she [treated] me.

(Compl. 3). As Defendants note, a liberal interpretation of Blaise's Complaint indicates that he is stating a Title VII claim for harassment or discrimination, or a racial discrimination claim under § 42 U.S.C. 1981. (Def.'s Mem. 1-2).

1. Title VII Harassment

Any Title VII claim is time-barred. In order for a plaintiff to pursue a Title VII claim in federal court in Virginia, a charge must be filed with the EEOC within 300 days of the date on which the "alleged unlawful employment practice occurred." See 42 U.S.C. § 2000e-5(e)(1); Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 440 (4th Cir. 1998). Blaise was terminated on December 18, 2013, and did not file with the EEOC until August 4, 2015. (Compl. 1-2), well beyond the 300 day time limit. (See also Docket No. 5, Ex. B, 2) (EEOC letter stating that complaint with agency was filed too late). To the extent that Blaise seeks to present a Title VII harassment claim, his claim is time-barred.

Blaise acknowledges that his EEOC filing fell outside the 300 day period, but argues that the statute of limitations was tolled for his Title VII harassment claim. The Fourth Circuithas held that equitable tolling is permissible when the "employee's failure to timely file results from either a 'deliberate design by the employer or actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.'" Olson v. Mobil Oil Corp., 904 F.2d 198, 201 (4th Cir. 1990) (quoting in part Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir.1982)). See also Chao v. Virginia Dep't of Transp., 291 F.3d 276, 283 (4th Cir. 2002) (stating that the statute of limitations may be tolled "'where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.'") (quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)). Nevertheless, even an employer's duplicity does not excuse employees from the obligation to pursue their rights to the extent that doing so remains reasonably possible. See Chao, 291 F.3d at 283 ("Equitable tolling is not appropriate ... 'where the claimant failed to exercise due diligence in preserving his legal rights.'") (quoting in part Irwin, 498 U.S. at 96, 111 S.Ct. 453); Kokotis v. United States Postal Service, 223 F.3d 275, 280 (4th Cir. 2000).

In this case, there is no allegation of duplicity by the Defendants. Blaise states that his claim for harassment based on Harris's "offensive remarks," "frequent phone calls," scheduling, and reprimands (Compl. 3), conduct of which Blaisewas necessarily aware, and which he could and should have reported to the EEOC within 300 days.

Blaise is not entitled to equitable tolling. Therefore, to the extent that Blaise's Complaint intends to assert a claim for Title VII harassment, it will be dismissed with prejudice.

2. § 1981

To state a prima facie case for racial harassment which created a hostile work environment under 42 U.S.C. § 1981, a plaintiff must state facts establishing that: (1) plaintiff experienced unwelcome harassment; (2) the harassment was based on race; (3) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive atmosphere, and (4) there is a basis for imputing the conduct to the employer and thus imposing liability on the employer. Reed v. Airtran Airways, 531 F. Supp. 2d 660, 668-69 (D. Md. 2008) (relying on ...