Opinion
6:23-cv-00395-TMC-JDA
07-14-2023
Mandrill Montgomery, Plaintiff, v. Prisma Health, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Defendant's partial motion to dismiss. [Doc. 9.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in this case and to submit findings and recommendations to the District Court.
Plaintiff, through counsel, filed this action in the Greenville County Court of Common Pleas on December 21, 2022 [Doc. 1-1], and Defendant removed the case to this Court on January 30, 2023 [Doc. 1]. On February 6, 2023, Defendant filed a partial motion to dismiss for failure to state a claim. [Doc. 9.] Plaintiff filed a response in opposition to the motion on February 21, 2023 [Doc. 10], and Defendant filed a reply on February 28, 2023 [Doc. 11]. Accordingly, the motion is ripe for review.
The facts included in this Background section are taken directly from the Complaint. [Doc. 1-1.]
Plaintiff's Employment with Defendant
Plaintiff, who is a black male, is a certified registered nurse anesthetist (“CRNA”). [Doc. 1-1 ¶¶ 6, 8.] Defendant employed Plaintiff from June 2008 until September 28, 2021. [Id. ¶ 7.] Throughout Plaintiff's employment with Defendant, he “experienced race discrimination within the anesthesiology department.” [Id. ¶ 9.] Examples of such race discrimination include seeing a noose hanging in the breakroom, which Plaintiff reported to management; being told by another employee that Brad Hoover, a white male supervisor, was “fashioning a noose that he hung on the anesthesia cart”; minorities being excluded from the anesthesia department; and observing other black employees experiencing a hostile work environment. [Id. ¶¶ 9-13.] Plaintiff “tried to keep his head down, do the best job [he] could for the patients, and stay out of the proverbial limelight.” [Id. ¶ 13.]
The August 28th Case
On Saturday, August 28, 2021, Plaintiff was assigned to an operating room to provide anesthesia medical services for a thoracic case (the “August 28th Case”). [Id. ¶ 14.] The August 28th Case was complicated and very busy, making immediate medical charting difficult. [Id.] Additionally, working on Saturdays could be “difficult because staffing is limited such that often an anesthesia tech[nician] nor a pharmacy technician was available . . . to provide additional medications.” [Id. ¶ 15.] Accordingly, during his break, Plaintiff gathered medications to be ready for the patient's potential needs. [Id.] At the end of the August 28th Case, Plaintiff reversed the anesthesia and contacted Dr. Matthew Vanna, a white male anesthesiologist, for emergence. [Id.] In Dr. Vanna's absence,Plaintiff extubated to a face mask. [Id.] “[T]he oxygen saturation was adequate, yet because of the patient's status and out of a concern for a post operative pulmonary event, atelectasis, or pneumonia, Plaintiff administered sugammadex, the only medication that definitively reverses all paralytics.” [Id.] By the time the post-anesthesia care unit arrived, the patient's oxygen saturation had increased. [Id.] Plaintiff then went to the medication dispensing cabinet “to drop off the drug box and he replaced the sugammadex from the code box in the normal fashion, as staff do for other emergent drugs.” [Id. ¶ 16.] Plaintiff also spoke to Dr. Vanna directly and told him the chain of events, Plaintiff's response, and a description of the medications he gave the patient. [Id.] Plaintiff alleges that his actions “were necessary under the circumstances to give the best care for the patient and avoid unnecessary complications.” [Id. ¶ 17.]
Plaintiff alleges that Dr. Vanna was not present even though he “wrongfully attested to attendance in the medical record.” [Doc. 1-1 ¶ 15.]
The Complaint explains that Plaintiff had been a full-time CRNA with Defendant for 11 years before changing to PRN status. [Doc. 1-1 ¶ 17.] At the time of the August 28th Case, Plaintiff usually worked in Defendant's gastrointestinal lab on the weekends and had not been involved in a thoracic case for about two years. [Id.] Thus, sugammadex was a medication that Plaintiff rarely needed to use. [Id.] Plaintiff had a long history of safe patient care and healthy working relationships with anesthesiologists who supervised him. [Id.] Plaintiff typically had the bronch cart, which included additional vasoactive and respiratory drugs, in the room with him in case there was an airway concern for a patient. [Id.] Additionally, the administration of reversal agents was within his scope of practice outlined by Defendant. [Id.]
Events Following the August 28th Case
On August 29, 2021, Plaintiff worked as normal, and he was scheduled to work 72 hours that week. [Id. ¶ 18.] However, on September 2, 2021, Plaintiff “was taken off the schedule and asked to stay home by Taylor Newsome[, a] white female[,] allegedly because [Plaintiff] had already worked 40 hours.” [Id. ¶ 19.] Plaintiff responded that he was aware of other employees who were allowed to work more than 40 hours per week and asked Newsome to email him an explanation because the practice was discriminatory. [Id.]
Plaintiff believes that Newsome asked Shaniqua Cotton, a black female in charge of staffing, to contact him to reiterate the policy. [Id.]
On September 5, 2021, Hoover arrived at Plaintiff's house unannounced and uninvited. [Id. ¶ 20.] Plaintiff, feeling uneasy, spoke to Hoover through a gate, and Hoover “reaffirmed his authority over [Plaintiff] by aggressively telling [him] that he was [Hoover's] direct report[] and that [Cotton] needed to mind her own business.” [Id.] Hoover told Plaintiff that everything about Plaintiff should go through Hoover only and that Plaintiff should not communicate with Cotton anymore. [Id.] Plaintiff “was intimidated by Hoover's aggressive tone and body language, and [Plaintiff] was unsure under what circumstances a home visit like this would be appropriate or sanctioned by the hospital for staff members.” [Id.]
At 10:22 a.m. on September 7, 2021, Plaintiff received a text message from David Hanselman, a white male CRNA manager, asking Plaintiff to call him. [Id. ¶ 21.] When they spoke, “Hanselman informed [Plaintiff] that Dr. Vanna had made multiple accusations against” Plaintiff. [Id.] The accusations stemmed from the August 28th Case, and Dr. Vanna had accused Plaintiff of stealing medication and documentation fraud. [Id. ¶ 22.] Plaintiff maintains that both accusations are false. [Id.] He also maintains that these allegations are racially motivated and retaliatory. [Id.] Plaintiff alleges that “Dr. Vanna has engaged in a pattern of racially discriminatory conduct during his employment with” Defendant. [Id.] Plaintiff had previously reported Dr. Vanna “to his manager for administering a paralytic to an awake patient with an unsecured airway, jeopardizing the patient's safety.” [Id.] Multiple coworkers also reported Dr. Vanna to the medical director to no avail. [Id.]
During the telephone call with Hanselman, Plaintiff engaged in False Claims Act protected activity by reporting that Dr. Vanna had engaged in billing fraud. [Id. ¶ 21.] Plaintiff reported that Dr. Vanna had attested that he was present for emergence, which is an insurance billing requirement; however, Dr. Vanna had never appeared. [Id.] Hanselman ended the conversation by stating that he was having a meeting with the administration, including Wesley Lio, Dr. Vanna's personal friend. [Id.] On September 10, 2021, Plaintiff again engaged in False Claims Act protected activity by reporting to Defendant's management that Dr. Vanna was engaging in billing fraud. [Id. ¶ 23.] On September 23, 2021, Plaintiff “was told to call into the office and have a telephone meeting with [Hanselman], [Hoover], and Aaron Toro.” [Id. ¶ 24.]
The Complaint alleges that Plaintiff's False Claims Act protected activity is connected to requirements of the Tax Equity and Fiscal Responsibility Act of 1982, “which is a statute that contains language that permits an anesthesiologist to be paid for medically directing anesthesia services” when certain requirements are met and the anesthesiologist documents and attests that the requirements have been satisfied. [Doc. 1-1 ¶¶ 27-34.]
On September 27, 2021, a surgeon called Plaintiff to inform him that Dr. Vanna had made racially offensive statements about Plaintiff in the presence of operating room staff. [Id. ¶ 25.] Dr. Vanna had called Plaintiff a slave and made statements implying that he is an incompetent CRNA. [Id.] The surgeon who informed Plaintiff “was highly offended and wanted [Plaintiff] to know about the racially offensive and defamatory things being said about [him] at the hospital.” [Id.] The following day, Plaintiff again informed Defendant about his concerns, including the same billing fraud allegations regarding Dr. Vanna. [Id. ¶ 26.]
Plaintiff's Termination and Subsequent Events
Plaintiff was terminated on September 28, 2021. [Id. ¶ 42.] He was accused of falsifying a medical record related to the administration of the drug sugammadex during the August 28th Case. [Id.] All four of the individuals involved in Plaintiff's termination-Dr. Vanna, Hanselman, Hoover, and Toro-are white men who were aware of Plaintiff's False Claims Act protected activities. [Id. ¶¶ 43-44.] Plaintiff believes that, at the time of his termination, he was the only black male employee out of a department of over 100 nurse anesthetists and anesthesiologists. [Id. ¶ 43.] Plaintiff alleges that, as the only black male in the department, he “was terminated for what is standard practice within the department.” [Id. ¶ 47.] He received no discipline prior to his termination and “was terminated without the corrective action plan afforded [his] white coworkers [and] outlined by the department manager and human resources.” [Id. ¶¶ 45-46.] On the day he was terminated, Plaintiff called Lori Smith in human resources and was told that Smith would call him back; however, Plaintiff never received a call or email. [Id. ¶ 48.]
Plaintiff contends that “if anyone should have been terminated it was Dr. Vanna, not” Plaintiff. [Doc. 1-1 ¶ 26.] However, Plaintiff believes that Dr. Vanna remains employed by Defendant. [Id.]
Defendant also “filed a complaint with the Board of Nursing against [Plaintiff's] CRNA licensure based on the false accusations and statements of Dr. Vanna and [Defendant's] management.” [Id. ¶ 49.] Plaintiff contends that this complaint was an attempt to have his professional CRNA licensure revoked. [Id. ¶ 50.]
Plaintiff contends that Defendant did not report Dr. Vanna to the licensure board. [Doc. 1-1 ¶ 26.]
This Action
The Complaint asserts the following causes of action: retaliatory and discriminatory discharge under the False Claims Act, race discrimination under Title VII, retaliation under Title VII, and defamation. [Id. ¶¶ 51-88.] Plaintiff seeks actual and punitive damages, including pre- and post-judgment interest, fees and costs, and any other relief the Court deems just and proper. [Id. at 20.]
The Complaint alleges that Plaintiff exhausted his administrative remedies by filing a Charge of Discrimination and receiving a Notice of Right to Sue from the Equal Employment Opportunity Commission. [Doc. 1-1 ¶ 5.]
APPLICABLE LAW
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cnty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 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.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. See Twombly, 550 U.S. at 557; see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
DISCUSSION
Defendant argues that Plaintiff's claims for race discrimination, retaliation, and defamation should be dismissed for failure to state plausible claims for which relief can be granted. [Doc. 9.] The Court addresses these claims seriatim.
Defendant does not seek dismissal of Plaintiff's False Claims Act claim.
Race Discrimination Claim
As an initial matter and as noted by Defendant [Docs. 9 at 3; 11 at 10 n.4], the Complaint appears to assert three separate claims of race discrimination under its Second Cause of Action-for hostile work environment, disparate terms and conditions of employment, and wrongful termination [Doc. 1-1 ¶¶ 60-72; see also Doc. 10 at 10 (“Plaintiff's race discrimination asserts three adverse actions: wrongful termination, hostile work environment, and disparate terms and conditions of employment.”)]. Because “these are separate claims, Plaintiff should have asserted each in a separate cause of action; however, his failure to do so is not in and of itself grounds to dismiss one or all of these claims at this time.” Oroujian v. Delfin Grp. USA LLC, 57 F.Supp.3d 544, 548 n.2 (D.S.C. 2014). Accordingly, the Court will address each race discrimination claim.
Disparate Treatment Claims
Title VII makes it unlawful for an employer “to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To state a plausible Title VII claim so as to survive a motion to dismiss, a plaintiff must allege facts that “support a reasonable inference that the decisionmakers were motivated by bias.” McCleary-Evans v. Md. Dep't of Transp., 780 F.3d 582, 586 (4th Cir. 2015).
In McCleary-Evans,
an African-American female job applicant sued a state agency, alleging she was not hired for two positions because of her race and gender. She alleged “[d]uring the course of her interview, and based upon the history of hires within [that agency], . . . both [supervisors] predetermined to select for both positions a White male or female candidate.” “But she alleged no factual basis for what happened ‘during the course of her interview' to support the alleged conclusion.” While “she repeatedly alleged that the Highway Administration did not select her because of the relevant decisionmakers' bias against African American women,” [the court] found that claim to only amount to a “naked” allegation and “no more than conclusions[.]” [The court] held that these allegations were too conclusory. Specifically, [the court] noted that “[o]nly speculation can fill the gaps in her complaint-speculation as to why two ‘non-Black candidates' were selected to fill the positions instead of her.” The mere fact that a certain action is potentially consistent with discrimination does not alone support a reasonable inference that the action was motivated by bias. Thus, [the court] concluded the plaintiff failed to allege “facts sufficient to claim that the reason it failed to hire her was because of her race or sex.”Bing v. Brivo Sys., LLC, 959 F.3d 605, 618 (4th Cir. 2020) (some alterations in original)
Termination
The Complaint alleges that Plaintiff was terminated because of his race. [Doc. 1-1 ¶¶ 42-50, 64, 70-72.] The Court concludes that the facts alleged are sufficient to support a reasonable inference that the decisionmakers who terminated Plaintiff were motivated by his race. The Complaint specifically alleges that at least two of the individuals involved in Plaintiff's termination-Dr. Vanna and Hoover-are white men who have shown racial animus. [Id. ¶¶ 9 (alleging that an employee told Plaintiff that he had seen Hoover, a supervisory employee, “fashioning a noose that he hung on the anesthesia cart”), 25 (alleging that a surgeon told Plaintiff that Dr. Vanna had called him a slave in the presence of operating room staff), 43 (alleging that Dr. Vanna, Hoover, and two other white males were involved in Plaintiff's termination).] Additionally, the Complaint alleges that Plaintiff “was terminated without the corrective action plan afforded [his] white coworkers” and that he was the only black male and “was terminated for what is standard practice within the department.” [Id. ¶¶ 46-47; see also id. ¶ 67.] Finally, the Complaint alleges that the reason Defendant gave for terminating Plaintiff, which Plaintiff disputes, is that he was accused of falsifying a medical record related to the administration of sugammadex. [Id. ¶ 42.] It further alleges that Dr. Vanna, who as previously noted is alleged to have shown racial animus, made those accusations and that the allegations were racially motivated. [Id. ¶¶ 22, 25.] Based on all of these factual allegations, the Court concludes that they provide more than mere speculation and are sufficient to support a reasonable inference (internal citations omitted) that Plaintiff's termination was motivated by his race. Accordingly, Defendant's motion to dismiss should be denied with respect to Plaintiff's claim that he was terminated based on his race.
Although Defendant argues that the allegations in paragraph 25 of the Complaint are “rank hearsay without any indicia of reliability whatsoever” [Doc. 11 at 9], Defendant has failed to direct the Court to any case law that holds that allegations in a complaint cannot be based on hearsay and the Court is not aware of any such case law, see Muzaffarr v. Ross Dress for Less, Inc., No. 12-61996-Civ, 2013 WL 1890274, at *2 (S.D. Fla. May 7, 2013) (noting that “there is no rule against hearsay statements in pleadings”).
Disparate Terms and Conditions of Employment
With respect to disparate terms and conditions of employment, the Complaint alleges that Plaintiff “was subjected to a biased and targeted investigation” related to Dr. Vanna's accusations stemming from the August 28th Case and that he “was subjected to disparate terms and conditions of employment related to hours, scheduling, and compensation” because his hours and paychecks were inaccurate on multiple occasions.[Id. ¶¶ 65-66, 68.] However, the Complaint includes no factual support for these conclusory allegations. Moreover, nowhere in the Complaint does Plaintiff allege that any errors in his hours and paychecks were motivated by race or that other non-black employees did not also receive inaccurate paychecks. Accordingly, the Court concludes that Plaintiff has failed to allege facts sufficient to support a reasonable inference that any terms and conditions of his employment-other than his termination-were motivated by his race. Accordingly, Defendant's motion to dismiss should be granted with respect to Plaintiff's disparate terms and conditions claim.
In the portion of the Complaint outlining disparate terms and conditions of employment, Plaintiff also appears to include allegations comparing his termination to the lack of discipline and termination of Dr. Vanna and allegations related to Defendant's failure to apply the progressive discipline policy before terminating Plaintiff. [Doc. 1-1 ¶¶ 64, 67.] However, the Court has addressed these arguments above with respect to Plaintiff's termination.
Hostile Work Environment
As part of its prohibition on race discrimination, Title VII also prohibits creating or allowing a hostile work environment based on race. See Baqir v. Principi, 434 F.3d 733, 746 n.14 (4th Cir. 2006). To prove a hostile work environment, “a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's race; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (alteration and internal quotation marks omitted). In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court reaffirmed the standard for determining when a plaintiff has established a hostile work environment, stating that a plaintiff must establish that the environment was “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787. “Unlike a typical claim of intentional discrimination based on a discrete act, a hostile-work-environment claim's very nature involves repeated conduct.” McIver v. Bridgestone Americas, Inc., 42 F.4th 398, 407 (4th Cir. 2022) (internal quotation marks omitted). Thus, actionable harassment occurs when the workplace is “permeated with ‘discriminatory intimidation, ridicule, and insult.'” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). In determining whether a hostile work environment exists, a court must examine the totality of the circumstances, including “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.” Faragher, 524 U.S. at 787-88 (internal quotation marks omitted).
Here, the Court concludes that the Complaint's allegations are insufficient to state a plausible hostile work environment claim. As an initial matter, the Complaint fails to specify which factual allegations purportedly apply to Plaintiff's hostile work environment claim. [Doc. 1-1 ¶ 62 (conclusorily alleging that Plaintiff “was subjected to a hostile work environment because of his race” but failing to specify factual allegations to support that claim).] In his response in opposition to the motion to dismiss, Plaintiff contends that he pled the following facts to support his hostile work environment claim: that he saw a noose being displayed prominently in the workplace; that Hoover harassed him at his home; and that he was informed on September 27, 2021, that Dr. Vanna had made racially offensive statements about Plaintiff, including calling him a slave, in the presence of operating room staff. [Doc. 10 at 10-11 (citing Doc. 1-1 ¶¶ 9, 20, 25).] However, these allegations are insufficient to plausibly state a hostile work environment claim.
As an initial matter, nothing in the Complaint plausibly alleges that Hoover's uninvited visit to Plaintiff's home had anything to do with his race. [Doc. 1-1 ¶ 20.] Instead, this allegation appears to be nothing more than “callous behavior by one's superiors.” E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (stating that “complaints premised on nothing more than rude treatment by coworkers, callous behavior by one's superiors, or a routine difference of opinion and personality conflict with one's supervisor, are not actionable under Title VII” (alterations, internal citations, and internal quotation marks omitted)); see also McIver, 42 F.4th at 409 (noting that “a plaintiff cannot rely on her own conjecture to impute a racial character to what appears to be neutral harassment”) (internal quotation marks omitted). With regard to seeing a noose hanging in the breakroom and being told that Dr. Vanna had called Plaintiff a slave, although these allegations are certainly egregious, the Court concludes that they are insufficient to satisfy the severe and pervasive standard, particularly where the Complaint does not allege when Plaintiff saw the noose and specifically alleges that he does not know who hung it. See, e.g., McIver, 42 F.4th at 408-10 (finding that alleged racial harassment, which was not directed specifically at the plaintiff but included hanging a noose on a machine of two black employees, racist caricatures, and a co-worker stating in the plaintiff's presence that “[w]e were doing fine without Black people on this crew,” was not sufficiently severe or pervasive to constitute a hostile work environment under Title VII); Perkins v. Int'l Paper Co., 936 F.3d 196, 204, 209-10 (4th Cir. 2019) (finding that a white employee wearing a KKK hat at work and another white employee complaining “that he was being asked to work like a n*****,” both of which the plaintiff was aware of, were too remote in time relative to each other to be sufficiently pervasive to create a hostile work environment); Irani v. Palmetto Health, 767 Fed.Appx. 399, 401, 416-17 (4th Cir. 2019) (finding that a supervisor's use of racial slurs and offensive language, including calling the plaintiff, who was of Indian descent, “Achmed the terrorist,” were not sufficiently severe or pervasive to create a hostile work environment and noting that “while the comments made . . . are odious, there is no evidence to suggest that the infrequent comments -- two comments over an 18 month period -- were so severe or pervasive as to be actionable”). Accordingly, Defendant's motion to dismiss should be granted with respect to Plaintiff's hostile work environment claim.
Retaliation Claim
Title VII's retaliation provision forbids an employer from taking action that discriminates against an employee because that employee has either “opposed any practice made an unlawful employment practice by this subchapter” or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Through the two clauses of the antiretaliation provision, Title VII protects activities that “fall into two distinct categories: participation or opposition.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). “Employees engage in protected oppositional activity when, inter alia, they complain to their superiors about suspected violations of Title VII.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc) (internal quotation marks omitted). Because “the statute only prohibits an employer from discriminating ‘because' the employee has engaged in a certain type of conduct,” to prevail on a retaliation claim a plaintiff must show “‘that the desire to retaliate was the but-for cause of the challenged employment action.'” Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 900 (4th Cir. 2017) (quoting Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013)).
The Complaint in this action alleges that Plaintiff engaged in opposition activities. [Doc. 1-1 ¶ 74.]
Here, the Court concludes that the Complaint's allegations are insufficient to state a plausible retaliation claim. The Complaint alleges that Plaintiff was terminated “because of his Title VII protected activities.” [Doc. 1-1 ¶ 75.] Like the hostile work environment allegations, however, the Complaint fails to specify which factual allegations purportedly apply to Plaintiff's retaliation claim. [Id. ¶ 74 (alleging that Plaintiff “engaged in protected activities under Title VII when he complained about harassment and disparate treatment on the basis of race” and that his “opposition activities, as described above, are protected activities under Title VII”).] A review of all the factual allegations of the Complaint reveals that the only allegations related to any complaints Plaintiff made are that he reported to management that he had seen a noose in the breakroom; that he complained to Newsome that his not being allowed to work more than 40 hours per week when other employees were allowed to do so was discriminatory; that he reported multiple times that Dr. Vanna had engaged in billing fraud; and that he reported that Dr. Vanna had administered a medication in a manner that jeopardized the patient's safety. [Id. ¶¶ 9, 19, 21, 22, 23, 26.] However, most of these complaints have nothing to do with alleged violations of Title VII.
Although Plaintiff alleges that he complained to Newsome about a discriminatory working hours policy, he fails to allege that he complained that the policy was racially discriminatory or that non-black workers were allowed to work more than 40 hours. [Id. ¶ 19 (alleging that Plaintiff “was aware of other employees that are allowed to work more than 40 hours” but failing to allege the races of these other employees).] Additionally, his reports about Dr. Vanna's alleged billing fraud constitute protected activity under the False Claim Act-not under Title VII-as the Complaint concedes. [Id. ¶¶ 21, 23, 41 (noting that his complaints on September 7, 10, and 28, constitute protected activity under the False Claims Act).] Finally, Plaintiff's report that Dr. Vanna had administered a medication in an unsafe manner does not allege a violation of Title VII. Thus, the only allegation of a Title VII-related complaint is when Plaintiff reported seeing a noose in the breakroom. [Id. ¶ 9.] However, the factual allegations regarding this opposition activity are insufficient to plausibly allege that Plaintiff was terminated because of this report. As previously noted, the Complaint does not allege when Plaintiff saw the noose during his 13-year employment with Defendant. Nor does it provide any allegations that the four individuals alleged to have made the decision to terminate Plaintiff knew that he had previously reported the noose “to management.” [Id.] Accordingly, the Court concludes that the Complaint fails to state a plausible Title VII retaliation claim because “it stops short of the line between possibility and plausibility” and alleges facts that only make it a “sheer possibility” that Plaintiff was terminated because of his reporting the noose. Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Therefore, Defendant's motion to dismiss should be granted with respect to Plaintiff's retaliation claim.
Plaintiff appears to argue that the Complaint alleges that he complained about Title VII protected activity on September 28, 2021, because it alleges that he informed Defendant of his “concerns, including billing fraud by Dr. Vanna” on that date. [Doc. 10 at 14 (citing Doc. 1-1 ¶ 25) (emphasis added).] However, the Court disagrees. The specific allegations of paragraph 25 assert that Plaintiff reported again that Dr. Vanna had attested that he was present for emergence when in fact he never appeared. [Doc. 1-1 ¶ 25.] That Plaintiff used the word including, which tends to imply that he also lodged other complaints on that date does nothing to inform the Court or Defendant about what those other complaints were such that Defendant has fair notice of the grounds upon which Plaintiff's claim rests. Moreover, the Complaint specifically alleges that his September 28th complaint was protected activity under the False Claims Act. [Id. ¶ 41.] Accordingly, the Court concludes that the only factual allegation in the Complaint related to a purported violation of Title VII is that Plaintiff reported seeing a noose in the breakroom.
Defamation
“‘The elements of defamation include: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.'” McNeil v. S.C. Dep't of Corrs., 743 S.E.2d 843, 848 (S.C. Ct. App. 2013) (quoting Murray v. Holnam, Inc., 542 S.E.2d 743, 748 (S.C. Ct. App. 2001)). To plead a defamation claim, a plaintiff should allege “‘with specificity the time, place, medium, and listener of the alleged defamatory statements.'” Pope v. Barnwell Cnty. Sch. Dist. No. 19, No. 1:16-cv-01627-JMC, 2017 WL 1148741, at *11 (D.S.C. Mar. 28, 2017) (quoting Doe v. Cannon, No. 2:16-cv-00530-RMG, 2017 WL 591121, at *1 (D.S.C. Feb. 14, 2017)).
Here, the Court concludes that Plaintiff has sufficiently pleaded a plausible defamation claim. Although Defendant argues that the Complaint's allegations “lack the necessary specificity to state a claim for defamation” [Doc. 9 at 15], the Court disagrees. The Complaint alleges that he was falsely called a slave, falsely accused of stealing medication, falsely accused of documentation fraud, and falsely called an incompetent CRNA. [Doc. 1-1 ¶ 79.] It further alleges that these statements were made “in the operating rooms” and “around the workplace.” [Id. ¶ 80.] More specifically, it alleges that Dr. Vanna made the statements to Hanselman and to a surgeon and other operating room staff and that Dr. Vanna's motivations for the statements were racial and retaliatory. [Id. ¶¶ 21-22, 25.] As Plaintiff points out, a statement is per se actionable where it accuses the plaintiff of unfitness in one's business or profession. [Doc. 10 at 15.] Accordingly, Plaintiff has pleaded the time, place, medium, and listener of the alleged defamatory statements with sufficient specificity to survive a motion to dismiss.
Defendant also argues that it is entitled to “an intra-corporate privilege for communications made between agents and associates of the same corporation” and that “Plaintiff's Complaint is replete with conclusory allegations, which are insufficient to overcome the application of the intra-corporate privilege.” [Doc. 9 at 16-17.] As acknowledged by Defendant [id. at 17],
[t]he elements of the intra-corporate privilege are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege may be lost, however, by the manner of its exercise. The person invoking the privilege must not exceed the scope of the occasion, engage in any unnecessary defamation, or act with actual malice.Muhammad v. Westinghouse Elec. Co. LLC, No. 3:12-3298-JFA-SVH, 2013 WL 5467673, at *6 (D.S.C. June 13, 2013) (internal quotation marks and citations omitted), Report and Recommendation adopted as modified by 2013 WL 5469982 (D.S.C. Sept. 30, 2013). In Muhammad, the Court concluded that it was appropriate to consider the affirmative defense at the motion to dismiss stage because “the complaint on its face show[ed] the existence of [the] affirmative defense” where it stated that the defamatory comments were made “during the course of a work-related investigation of [the plaintiff's] job performance.” Muhammad, 2013 WL 5469982, at *7. Here, the Complaint does not allege that the defamatory statements were made during a work-related investigation. Instead, as stated, it alleges that they were made “in the operating rooms” and “around the workplace” [Doc. 1-1 ¶ 80] to co-workers and members of the public who “were not in a position of need-to-know” [id. ¶ 85], that Dr. Vanna made the statements to Hanselman and to a surgeon and other operating room staff, and that Dr. Vanna's motivations for the statements were racial and retaliatory [id. ¶¶ 21-22, 25]. These allegations are sufficient to allege that Dr. Vanna went further than what the occasion demanded. See Murray v. Holnam, Inc., 542 S.E.2d 743, 749 (S.C. Ct. App. 2001) (“The privilege does not protect any unnecessary defamation. In order for a communication to be privileged, the person making it must be careful to go no further than his interests or his duties require. Where the speaker exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of the plaintiff, he will not be protected.”) Accordingly, the Court concludes that this is not a case where it is appropriate to consider the affirmative defense at the motion to dismiss stage. Thus, Defendant's motion to dismiss should be denied with respect to Plaintiff's defamation claim.
Because the Court declines to consider the intra-corporate defense at this stage, the Court makes no findings regarding the merits of this defense, which could be raised and considered at a later procedural posture.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the partial motion to dismiss [Doc. 9] be GRANTED IN PART and DENIED IN PART. The motion should be granted with respect to Plaintiff's Title VII discrimination claims that he was subjected to disparate terms and conditions of employment and a hostile work environment based on his race and with respect to Plaintiff's Title VII retaliation claim. However, the motion should be denied with respect to Plaintiff's Title VII discrimination claim that he was terminated based on his race and with respect to Plaintiff's defamation claim.
Plaintiff has requested leave to amend the Complaint if the Court holds that deficiencies exist. [Doc. 10 at 18.] Although the text of Rule 15(a)(2) requires that the Court “freely give leave [to amend] when justice so requires,” Fed.R.Civ.P. 15(a)(2), “a district court may deny leave to amend if the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile,” United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451, 461 (4th Cir. 2013) (internal quotation marks omitted). Here, Plaintiff has not provided a proposed amended complaint for the Court or Defendant's consideration and review, nor has he indicated what additional factual allegations might be contained in an amended complaint. Therefore, the record before the Court contains nothing on which the undersigned could make a recommendation with respect to whether Plaintiff should be allowed to amend his Complaint.
IT IS SO RECOMMENDED.