Shapiro v. Howard Univ.

DANIELLE SHAPIRO, Plaintiff, v. HOWARD UNIVERSITY, et al., Defendants.

Civil Action No. 18-cv-2588 (TSC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 30, 2019

MEMORANDUM OPINION AND ORDER

Plaintiff Danielle Shapiro, proceeding pro se, brings this employment discrimination action against Howard University and Howard University Hospital (collectively, "Howard"). This matter is before the court on Defendants' Motion to Dismiss (ECF No. 11) and supporting memorandum (ECF No. 11-1, "Def.'s Mem.").

Under Federal Rule of Civil Procedure 8, a plaintiff need only provide a "short and plain statement of [her] claim showing that [she] is entitled to relief," Fed. R. Civ. P. 8(a)(2), that "give[s] the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). Here, Plaintiff's Complaint (ECF No. 1, "Compl.") is neither short nor plain. It is a seven-page preprinted form titled "Complaint for Employment Discrimination" with a 12-page typewritten attachment titled "Complaint for Employment Discrimination - Statement of Facts and Statement of Claim" and three exhibits: Charge of Discrimination (EEOC Charge No. 570-2017-01490), a declaration in support of the EEOC charge, and EEOC's Dismissal and Notice of Rights.¹ The court must consider more than the complaint, however. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (noting the district court's obligation "to consider a pro se litigant's complaint 'in light of' all filings, including filings responsive to a motion to dismiss"); Schnitzler v. United States, 761 F.3d 33, 38 (D.C. Cir. 2014) (noting "the district court's obligation to construe a pro se plaintiff's filings liberally, and to consider his filings as a whole before dismissing a complaint"). Also before the court are Plaintiff's 245-page opposition (ECF No. 14, "Pl.'s Opp'n")² consisting of a 42-page pleading and 39 exhibits totaling 203 pages, and her Surreply (ECF No. 17).³ While Plaintiff's submissions are not models of clarity, they are not "an unintelligible rambling narrative of allegations," as Defendants characterize them. Def.'s Mem. at 4; see id. at 12.

Having reviewed the parties' submissions, the court concludes that Plaintiff fails to state disparate treatment, hostile work environment, constructive discharge and ADA claims upon which relief can be granted. Because she does adequately allege a retaliation claim, the court GRANTS Howard's motion to dismiss in part and DENIES it in part.

I. BACKGROUND

A. Family Medicine Residency Program

Howard offers postgraduate training to medical residents, the standards for which the Accreditation Council for Graduate Medical Education ("ACGME") establishes. Def.'s Mem. at 3; see Compl ¶ 11. One such training program is Howard's Family Medicine Residency Program. "[R]esidents are to learn through experiential training, informal feedback, coaching and counseling meetings, written evaluations . . . , and through formal summative feedback, which is known as Milestones Evaluations/Biannual Program Director's Meeting." Compl. ¶ 11. A resident must achieve "competency in: professionalism; and interpersonal and communication skills," among other areas. Def.'s Mem. at 3; see id., Ex. 1 at 1.

The American Board of Family Medicine ("ABFM") sets the standards for residents in the Family Medicine Department, Def.'s Mem. at 3, among which is a strict attendance requirement:

Residents are expected to perform their duties as resident physicians for a minimum period of eleven months each calendar year. Therefore, absence from the program for vacation, illness, personal business, leave, etc. must not exceed a combined total of one (1) month per academic year. The ABFM defines one month as 21 working days or 30 calendar days[.] Absence from residency education, in excess of one month within the academic year (G-1, G-2 or G-3 year) must be made up before the resident advances to the next training level, and the time must be added to the projected date of completion of the required 36 months of training.

Compl. ¶ 48 (emphasis removed). "There is no carve-out in the ABFM guidelines for a resident's absent days relating to any alleged infirmity, illness or disability." Def.'s Mem. at 4.

The Howard University Employee Handbook ("Handbook") sets forth the "internal policies outlining the terms and conditions of employment at Howard," including "progressive discipline," id., starting with a supervisor's informal counseling of an employee whose performance, conduct or attendance shows "early signs of problems," id., Ex. 2 (Handbook Sec. 12.01); Compl. ¶ 13.⁴ If informal counseling is ineffective, the Handbook calls for formal disciplinary action in four steps: Letter of Admonition; Letter of Warning and Performance Improvement Plan (PIP); a Final Warning; and Termination. See Def.'s' Mem., Ex. 2 (Handbook Sec. 12.02). Notwithstanding these provisions, Howard "reserves the right to omit any or all of the levels of discipline depending on the severity of the offense." Id., Ex. 2 (Handbook Sec. 12.00).

Plaintiff joined Howard's Family Medicine Residency Program on July 1, 2016, as a second-year resident. Compl. ¶ 1. She "was the only Caucasian, Jewish American female in the . . . program" at that time. Id. ¶ 2. Plaintiff's supervisors included three chief residents (two African born males and one Asian male). Id. ¶ 7. Her direct supervisor was Dr. Oladunni Filani (African born male), Director of the Family Medicine Program. Id.; Def.'s Mem. at 5. Dr. Mark Johnson (African American male) was the Chair of the Family Medicine Department, Compl. ¶ 7; Def.'s Mem. at 5, and Plaintiff's academic advisor, Compl. ¶ 35.

Based on Plaintiff's "competency evaluations as well as [her] performance in the ambulatory clinic, inpatient services, and operating/procedure rooms," Def.'s Mem., Ex. 3, she met "the requirements to advance to the next . . . level of training within the Department of Community and Family Medicine," id., Ex. 3. By memorandum dated January 27, 2017, Dr. Filani notified Plaintiff of Howard's "intention to renew [her] Post Graduate Training contract for the 2017-2018 academic training year beginning July 1, 2017." Id., Ex. 3; Compl. ¶ 3. Renewal was "contingent upon [her] continued demonstration of professional and medical competence and the successful completion of the [2016-17] academic year." Def.'s Mem., Ex. 3.

B. Orientation, Holidays and Meetings

Plaintiff claims to have been singled out from the beginning. She alleges she was not given "[i]mportant information regarding orientation activities and onboarding communications/materials," Compl. ¶ 8, and was given "an expired and invalid meal ticket for the July 2016 orientation," id. ¶ 9. She allegedly was excluded from Christmas holiday events, id., and denied "[an] opportunity to attend resident events, such as the welcome of new hires event in July 2016, as [she] was intentionally put on call duty when these events were scheduled," id. Plaintiff alleges that she was subjected to "hateful comments" about "Americans, the American government, LGBT community, the Washington, DC African American community, and other disenfranchised groups." Id. ¶ 10. And she "was not accommodated for time off to observe high holy Jewish observances," id., while directed "to work the Christian holiday of Christmas because [she is] Jewish," id.

C. Sharps Injury

"On September 30, 2016, [Plaintiff] suffered a needle stick injury and bodily fluid exposure while assisting the Obstetrics and Gynecology Attending Physician . . . in post-vaginal delivery surgical repair." Id. ¶ 52. The attending physician allegedly instructed Plaintiff to use her hands instead of a retractor, and while sewing stitches on a patient with a venereal disease, he stuck Plaintiff's finger. See id. ¶¶ 52-53, 59. Plaintiff therefore had to take blood tests for HIV and hepatitis, and retesting over the following 12 months allegedly "caused [her] physical and emotional distress and anguish." Id. ¶ 59.

Plaintiff claims that this incident was an example of Howard's "frighteningly sloppy procedures," id. ¶ 53, and she faulted Howard's investigation of the incident as a "cover up for the fact that [it has] lax cross-contamination policies creating a serious potential hazard for the Hospital," id. ¶ 56. Following the incident, Howard allegedly shared information in Plaintiff's medical records without authorization, id., and "penalized [her] for taking necessary time off to tend to the medical needs [its] negligence posed," id. ¶ 58.

Plaintiff alleges that, on October 11, 2016, Dr. Filani "summoned [her] to a meeting to discuss the sharps incident." Id. ¶ 60. The meeting allegedly "turned into an interrogation," id., during which Dr. Filani expressed his disbelief at Plaintiff's account of the event. Id. Plaintiff also alleges that Dr. Filani "provided insulting and negative feedback stating that he or others are 'walking on eggshells' around [her]." Id.

D. Didactics Meetings

Plaintiff alleges that there was a mandatory didactics meeting for all residents on Wednesday mornings. Pl.'s Opp'n, Ex. 31 at 1. On November 9, 2016, Dr. Filani scheduled meetings at 10 a.m. and 11 a.m., and Plaintiff did not attend either meeting, choosing "to only show up for call that afternoon." Id., Ex. 31 at 1-2.

According to Plaintiff, Dr. Filani "singled [her] out" by emailing her on November 9, 2016 regarding her failure to attend these meetings, despite the fact that other residents had also not attended. Compl. ¶ 15; see Pl.'s Opp'n, Ex. 31 at 2. She responded "in great detail that notice of the meeting was unclear and given at . . . short notice." Compl. ¶ 15. She "was not aware of the meeting and so [she] was not there." Pl.'s Opp'n, Ex. 31 at 2. She asked Dr. Filani to send...