Ferguson v. Mem'l Health Care Sys., Inc.

BRENDA FERGUSON, Plaintiff v. MEMORIAL HEALTH CARE SYSTEM, INC., d/b/a CHI Memorial Defendant.

No. 1:20-cv-00346-JRG-SKL

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE CHATTANOOGA DIVISION

March 24, 2021

REPORT AND RECOMMENDATION

Before the Court is Plaintiff Brenda Ferguson's motion to amend the complaint [Doc. 17]. Defendant Memorial Health Care System filed a response in opposition [Doc. 23]. Plaintiff did not file a reply, and the time for doing so has passed. See E.D. Tenn. L.R. 7.1. This matter is now ripe. For the reasons set forth below, I recommend the motion to amend be granted in part and denied in part.¹

I. BACKGROUND

Plaintiff worked for Defendant as a nurse from 2008-2019. She was terminated on April 22, 2019, after she tested positive for a certain medication during a drug test. Plaintiff produced a prescription for the medication, but Defendant claimed the prescription was invalid because it was over twelve months old. According to Plaintiff, Defendant had no policy against recognizing such prescriptions.

Defendant eventually reinstated Plaintiff, although not to a nursing position. Defendant told Plaintiff she could not return to a nursing position until her nursing license was reinstated;however, Plaintiff maintains that she was actually always in good standing with the Tennessee Board of Nursing. Regardless, Plaintiff alleges she was forced to work in the back of a chicken truck until she found a new nursing job with a different employer. As a result, she has suffered and continues to suffer significant loss of earnings and other damages.

Plaintiff contends Defendant discriminated against her on the basis of Defendant's erroneous perception of Plaintiff as a person with a disability, that is, a person with a "substance abuse problem," or an "illegal drug user." [Doc. 1 at Page ID # 5, ¶ 23]. In her original complaint, Plaintiff asserted one claim—unlawful termination/refusal to reinstate in violation of the Americans with Disabilities Act ("ADA") [Id. at Page ID # 5, ¶ 24-26]. Plaintiff also claimed Defendant was responsible for the actions of its supervisory employees under a theory of respondeat superior [Id. ¶ 27].

Defendant filed a motion to dismiss Plaintiff's original complaint on January 11, 2021 [Doc. 9], the substance of which is not addressed herein. In the motion to dismiss, Defendant disclosed the name of the controlled substance Plaintiff tested positive for which it claims led to her termination. Plaintiff then filed the instant motion to amend on February 15 [Doc. 17]. She seeks to add new claims to her complaint for "unlawful disclosure of medical information in violation of the Americans with Disabilities Act and Tennessee Common Law," arising from Defendant's disclosure in the motion to dismiss [Id. at Page ID # 47]. She also seeks to make unidentified "minor, nonsubstantive changes" [Id.]. Defendant does not oppose the referenced minor, nonsubstance changes.

II. STANDARDS

Rule 15 of the Federal Rules of Civil Procedure directs that, where an amendment is not made as a matter of course, "a party may amend its pleading only with the opposing party's writtenconsent or the court's leave." Fed. R. Civ. P. 15(a)(2). "The court should freely give leave when justice so requires." Id.

Factors relevant in determining whether leave should be denied include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of the amendment." See Foman v. Davis, 371 U.S. 178, 182 (1962); see also Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003). Although leave to amend is ordinarily freely given under Rule 15, an amendment may be denied as futile if the claim sought to be added "could not withstand a Rule 12(b)(6) motion to dismiss." See Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing Thiokol Corp. v. Dep't of Treasury, 987 F.2d 376, 382-83 (6th Cir. 1993)).

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead facts that, if true, state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Flanory v. Bonn, 604 F.3d 249, 252-53 (6th Cir. 2010). A court must determine not whether the claimant will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). While the court must construe the complaint in the light most favorable to the claimant and accept as true all well-pleaded factual allegations, legal conclusions and unwarranted factual inferences need not be accepted as true. See Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999). Courts are prohibited from looking to facts outside the proposed amended pleading when determining whether the amendment is futile. See Rose, 203 F.3d at 420-21. Courts may consider the complaint and any exhibits, as well as "public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they arereferred to in the Complaint and are central to the claims contained therein." Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008) (citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)).

III. ANALYSIS

Plaintiff's proposed amended complaint includes four new claims (Claims 2 through 5), in addition to the wrongful termination claim and assertion of respondeat superior liability from the original complaint. The newly proposed claims are: unlawful disclosure of medical information in violation of the ADA (Count 2); retaliation, in violation of the ADA (Count 3); public disclosure of private facts, in violation of Tennessee common law (Count 4); and employer disclosure of employee personal information, in violation of Tennessee common law (Count 5). Again, each of these claims relates to Defendant's statements in its motion to dismiss, in which Defendant identifies the controlled substance present in Plaintiff's drug test.

Defendant does not argue undue delay, bad faith, or prejudice; instead, it argues the motion to amend as to these new claims should be denied because none of the proposed new claims could survive a motion to dismiss and the amendment is therefore futile.

A. Exhaustion of Administrative Remedies (Counts 2 and 3)

Defendant argues Plaintiff's proposed ADA claims are futile because Plaintiff did not exhaust her administrative remedies before filing suit. A "claimant who wishes to bring a lawsuit claiming a violation of the ADA must file a charge of discrimination with the EEOC within 300 days of the alleged discrimination." Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir. 2000) (citations omitted). "A charge is sufficient if it serves to 'identify the parties[ ] and to describe generally the action or practices complained of.'" Johnson v. Cleveland City Sch. Dist., 344 F. App'x 104, 109 (6th Cir. 2009) (quoting 29 C.F.R. § 1601.12(b)) (alteration in original).The EEOC must then determine whether to issue a right to sue letter. "Until an employee receives a right to sue letter from the EEOC, she has not exhausted her administrative remedies and may not file suit under the ADA." Oliver v. Titlemax, 149 F. Supp. 3d 857, 863 (E.D. Tenn. 2016) (citing 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12117(a)) (granting defendant's motion to dismiss claims not addressed in EEOC charge). "[T]he failure to obtain a right-to-sue letter is not a jurisdictional defect; rather the right-to-sue letter is a condition precedent." Parry, 236 F.3d at 309 (citation omitted). Nevertheless, an ADA claim is "subject to a motion to dismiss at any time before notice of the right to sue is received." Portis v. State of Ohio, 141 F.3d 632, 635 (6th Cir. 1998) (quoting Pinkard v. Pullman-Standard, 678 F.2d 1211, 1218 (5th Cir. 1982)).

Plaintiff's proposed amended complaint states: "Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission. Plaintiff has received her Notice of Right to Sue, which is attached." [Doc. 17 at Page ID # 64, ¶ 55]. The referenced right to sue letter is not attached to the proposed amended complaint. Plaintiff, however, does attach a right to sue letter to her original complaint, and that letter is dated September 21, 2020 [Doc. 1-1 at Page ID # 8]. Defendant's allegedly unlawful disclosure/act of retaliation (filing the motion to dismiss) occurred nearly four months later, on January 11, 2021 [Doc. 9].

Based on the current record, I find Plaintiff has not exhausted her administrative remedies as to the new ADA claims and therefore may not assert the proposed ADA claims at this time. Plaintiff's reference to a right to sue letter in her proposed amended complaint clearly relates to the original right to sue letter attached to her original complaint. To conclude otherwise is to makean unwarranted factual inference, particularly considering that Plaintiff failed to file a reply to clarify that she had, in fact, administratively exhausted the new ADA claims.²

Accordingly, I recommend Plaintiff not be permitted to pursue her proposed Claims 2 and 3, for unlawful disclosure and retaliation in violation of the ADA at this time.

B. Retaliation in Violation of ADA (Claim 3)

In an effort to provide clarity, I will further address Plaintiff's proposed retaliation claim (Claim 3). The ADA prohibits "retaliation against any individual because of his or her opposing practices made unlawful by the [ADA] or otherwise seeking to enforce rights under the [ADA]." A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 696-97 (6th Cir. 2013) (citing 42 U.S.C. § 12203) (other citations omitted). To establish a prima facie case of retaliation under the ADA, a plaintiff must show that (1) she "engaged in activity protected by the...