Jones v. Hca (Hospital Corp.

16 F.Supp.3d 622

Barry F. JONES, Plaintiff,

v.HCA (HOSPITAL CORPORATION OF AMERICA), Defendant.

Civil Action No. 3:13cv714.

United States District Court, E.D. Virginia, Richmond Division.

Signed April 21, 2014

Motion granted.

Barry F. Jones, Henrico, VA, pro se.

Susan Childers North, Leclair Ryan PC, Williamsburg, VA, Naomh Maire Hudson, Leclair Ryan PC, Richmond, VA, for Defendant.

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

The matter comes before the Court on the MOTION TO DISMISS PURSUANT TO FED. R. CIV. PRO. 12(b)(6) (Docket No. 6) filed by Parallon Enterprises, LLC (misnamed in the Complaint as HCA). The defendant also challenges the Court's subject matter jurisdiction over Jones' Title VII and ADA retaliation claims, though the motion does not make the challenge under Rule 12(b)(1). The plaintiff's Complaint appears to allege: (1) a violation of the Equal Pay Act, 42 U.S.C. § 206; (2) a hostile work environment in violation of Title VII, 42 U.S.C. § 2000e–2; (3) failure to accommodate and wrongful discharge under the Americans with Disabilities Act, 42 U.S.C. § 12112; (4) retaliation under Title VII, 42 U.S.C. § 2000e–3(a); (5) retaliation under the ADA, 42 U.S.C. § 12203; and (6) a Bowman action for wrongful discharge under Virginia common law. For the reasons set forth below, the allegations of the Complaint are insufficient to state a claim. Therefore, the MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) (Docket No. 6) will be granted.

Under the third element, the analysis contains a “subjective and objective assessment of the conduct.” Martin v. Scott & Stringfellow, Inc., 643 F.Supp.2d 770, 787 (E.D.Va.2009). In other words, “[t]he environment must be perceived by the victim as hostile or abusive, and that perception must be reasonable.” Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir.2008). At this stage, the Court must accept that Jones found the conduct subjectively severe or pervasive. To determine whether the conduct was objectively severe or pervasive, courts consider “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris, 510 U.S. at 23, 114 S.Ct. 367. No single factor is dispositive, but “[e]mployment discrimination laws are not designed to create a general civility code for the workplace.” E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315–16 (4th Cir.2008). “[I]solated incidents of hostile or abusive language are typically insufficient to support a hostile work environment claim.” Martin v. Scott & Stringfellow, Inc., 643 F.Supp.2d 770, 787 (E.D.Va.2009) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).

Jones' Complaint lists only the two specific instances of harassing conduct and also alleges that he received generally “negative” performance reviews and warnings that he would be terminated for failing to meet productivity quotas. Although the pamphlets and drawing could be fairly considered offensive, neither are particularly physically threatening, and the pamphlets are rather ambiguous. See Montano v. INOVA Health Care Servs., 2008 WL 4905982, at *3 (E.D.Va. Nov. 12, 2008) (“Courts have found the existence of racially hostile workplace based on verbal harassment only in instances where unambiguous racial epithets ... were uttered with recurring frequency.”).

Moreover, Jones provides no details about the performance reviews or warnings that shed any light into their severity or frequency, much less that they were racially motivated. Instead, he summarily asserts that the “negativity escalated to harassment.” See Henderson v. Labor Finders of Va., Inc., 2013 WL 1352158, at *7 (E.D.Va. Apr. 2, 2013) (finding that plaintiff sufficiently stated a claim for hostile work environment by alleging facts indicating that he was subject “to frequent and pervasive slurs and insults based on his sex, culminating in threats of violence for continuing to work at Labor Finders” despite “numerous attempts to notify” management about the alleged treatment). While a plaintiff need not list every incident in unflinching detail, the Complaint must indicate a pattern of “extremely abusive language” or otherwise pervasive conduct based on the plaintiff's race. See Miller v. Washington Workplace, Inc., 298 F.Supp.2d 364, 375 (E.D.Va.2004); see also Montano, 2008 WL 4905982, at *3 (dismissing complaint citing five offensive remarks over the course of the year made by five different co-workers). In this case, the Complaint sheds no light on the emails that might reveal physically threatening or abusive language.

Finally, and most problematic, Jones does not allege facts that could provide a basis for imposing liability on his employer, and therefore, he fails to plead the fourth element of his claim. An employer can be held vicariously liable for a hostile work environment if “a supervisor with immediate (or successively higher) authority over the employee” created the environment. Henderson, 2013 WL 1352158, at *6 (quoting Faragher, 524 U.S. at 807, 118 S.Ct. 2275). As noted above, the Complaint does not adequately allege that the negative performance reviews or warnings regarding Jones' productivity levels were racially motivated.² Indeed, Jones completely omits to indicate the exact person or persons who sent the emails. As a result, the Complaint does not attribute any unambiguous instances of racially motivated harassment to a supervisor. Furthermore, Jones does not allege that he reported the other, more specific instances to a supervisor or attempted to “avail [himself] of [Parallon's] preventive or remedial apparatus.” Faragher, 524 U.S. at 806, 118 S.Ct. 2275. Because Jones does not allege that his supervisors “knew or should have known about the harassment and failed to take effective action to stop it,” his claim fails. Sunbelt Rentals, Inc., 521 F.3d at 318–19 (noting that courts should not “lightly” hold employers liable for scattered incidents); Martin, 643 F.Supp.2d at 787.

3. Count III: Wrongful Discharge and Failure to Accommodate under the Americans with Disabilities Act

To state a claim for the failure to accommodate under the ADA, a plaintiff must allege sufficient facts to permit a reasonable inference that “(1) he had a disability; (2) the defendant had notice of the disability; (3) he could perform the essential functions of his job with a reasonable accommodation; and (4) the defendant refused to make such an accommodation. Mobley v. Advance Stores Co., Inc., 842 F.Supp.2d 886, 889 (E.D.Va.2012) (considering motion for summary judgment); see Orne v. Christie, 2013 WL 85171, at *4 (E.D.Va. Jan. 7, 2013) (considering Rule 12(b)(6) motion).

First, the Court considers whether Jones had a “disability” under the ADA. A “disability” is defined 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 impairment; or (C) being regarding as having such impairment.” 42 U.S.C. 12102; Reynolds, 701 F.3d at 150.

In 2008, Congress enacted the Americans with Disabilities Amendments Act (“ADAA”) in response to a series of Supreme Court decisions adopting a strict construction of “disability.” Summers v. Altarum Inst. Corp., 740 F.3d 325, 329 (4th Cir.2014). The ADAA directs courts to construe the definition broadly, “to the maximum extent permitted by [its] terms.” 42 U.S.C. § 12102(4)(A). To advance this “liberalized purpose,” Congress instructed courts to also interpret the term “substantially limits” broadly. Id. § 12102(4)(B); Summers, 740 F.3d at 329. The EEOC has since issued valid regulations implementing the new standard. Summers, 740 F.3d at 329 (“The EEOC's interpretation—that the ADAA may encompass temporary disabilities—advances [Congress'] goal.”); see 29 C.F.R. § 1630.2(j)(1).

Jones alleges that a metabolic condition called G6PD, first diagnosed during his Naval Service Career, causes shortness of breath and fatigue in the presence of medication prescribed for his depression and anxiety. His metabolic condition meets the EEOC definition of “physical” impairment, 29 C.F.R. § 1630.2(h)(1) (“Any physiological disorder or condition....”). Further, his depression and anxiety meet the EEOC definition of “mental” impairment. Id. § 1630.2(h)(2). Next, the EEOC regulations list “breathing” as a “major life activity.” Thus, the Court looks to whether Jones adequately plead sufficient facts to allege that his condition “substantially limits” his breathing. As the regulations make clear, “ ‘substantially limits' is not meant to be a demanding standard.” Id. § 1630.2(j)(1)(i). A condition that is episodic may “substantially limit” a major life activity, and mitigating measures are irrelevant to the determination. Id. § 1630.2(j)(1)(vi)-(vii). At this stage, keeping in mind that Congress has directed courts to broadly construe “substantially limits,” Jones has pled sufficient facts to support a reasonable inference that his condition is a “disability” under the ADA. See id. § 1630.2(j)(1)(iii) (“The primary object of attention in cases ... should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity.”).

Second, Jones alleges that he requested an accommodation and sought medical leave. Based on this allegation, the Court may infer that Parallon had notice of his condition.

Next, the Court considers whether Jones is a “qualified individual,” or in other words, “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111. The “essential functions” are those “fundamental job duties of the...