Byars v. UAB Hospital Management LLC et al

Filing 11

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 10/3/14. (SAC )

FILED
2014 Oct-03 PM 03:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TERRY BYARS,

}
}
Plaintiff,
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v.
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UAB HOSPITAL MANAGEMENT, LLC, }
et al.,
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}
Defendants.
}

CIVIL ACTION NO.
2:14-CV-01338-WMA

MEMORANDUM OPINION
Defendants UAB Hospital Management, LLC (“UAB Hospital”) and
Dr. Thomas Vetter (“Dr. Vetter”) have jointly filed a motion to
dismiss plaintiff’s original complaint, invoking Federal Rule of
Civil Procedure 12(b)(6). Plaintiff, Terry Byars, instituted this
action alleging race discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”). After full briefing, defendants’ motion is now
under submission.
For the reasons stated below, the court will grant defendants’
motion as addressed to Count III and as to all counts against Dr.
Vetter in his individual capacity, but will deny defendants’ motion
as to Count I and II against UAB Hospital and Dr. Vetter in his
official capacity.
“[T]he proper method for a plaintiff to recover under Title
VII is by suing the employer, either by naming the supervisory
employees as agents of the employer or by naming the employer

directly.” Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.
1991). Plaintiff names as defendant employers UAB Hospital and Dr.
Vetter both in his official and his individual capacities. While
plaintiff’s

naming

both

UAB

Hospital

and

Dr.

Vetter

under

alternative theories of who is her “employer” is unremarkable,
plaintiff’s naming of Dr. Vetter in his individual capacity exceeds
the scope the Eleventh Circuit has allowed for Title VII liability
against a supervisor. The Eleventh Circuit, while allowing official
capacity suits against supervisors, has followed the principle1
that “[i]ndividual capacity suits under Title VII are . . .
inappropriate.” Busby, 931 F.2d at 772. Therefore, the claims
against Dr. Vetter in his individual capacity must be dismissed for
failing to state a claim upon which relief can be granted.
“As a prerequisite to bringing suit under Title VII, a charge
must be filed with the EEOC within 180 days of the date of the act
giving rise to the charge.” Calloway v. Partners Nat. Health Plans,
986 F.2d 446, 448 (11th Cir. 1993). Plaintiff filed a charge with
the EEOC on July 16, 2013, well within 180 days of her June 12,
2013

employment

termination

and

1

her

June

17,

2013

rescinded

The court notes that while the Eleventh Circuit has
repeatedly relied upon Busby v. City of Orlando, it has yet to
directly address whether the 1991 amendments to the Civil Rights
Act of 1964 allowing compensatory and punitive damages extended
liability to “individual capacity” suits where those individuals
are acting as agents of the employer. Wilson v. Gillis Adver.
Co.,No. 92–AR–2126–S, 1993 WL 503117, at *1-2 (N.D. Ala. Jan. 8,
1993) citing Bridges v. Eastman Kodak Co., 800 F.Supp. 1172
(S.D.N.Y. 1992).
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transfer to the UAB Cancer Center, both of which would be adverse
employment decisions. While plaintiff’s July 16, 2013 EEOC charge
alleged racial discrimination, nowhere in the charge did plaintiff
directly or indirectly raise the issue of retaliation that she now
alleges in Count III. Therefore, having not exhausted her available
administrative remedies in regard to her retaliation claim in Count
III of her complaint, that claim must be dismissed for failing to
state a claim upon which relief can be granted.
Even

if

plaintiff

had

successfully

exhausted

her

administrative remedies as to the retaliation claim, Count III
fails to state a viable retaliation claim for another reason. To
survive a Rule 12(b)(6) motion, plaintiff’s complaint must “contain
sufficient factual matter, accepted as true, to state a claim for
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)(emphasis added). “Although a Title VII complaint
need not allege facts sufficient to make out a classic McDonnell
Douglas prima facie case . . . it must provide enough factual
matter (taken as true) to suggest intentional race discrimination.”
Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th
Cir. 2008)(quotes omitted). Therefore, while not synonymous with
plausibility, assessing the factual support for each element of a
prima facie case is a guide for determining plausibility. To
present

a

prima

facie

case

of

retaliation

under

Title

VII,

plaintiff must show that “(1) she participated in a statutorily
3

protected

activity;

(2)

she

suffered

a

materially

adverse

employment action; and (3) there is a causal connection between the
two.” Evans v. Books-A-Million 762 F.3d 1288, 1298 (11th Cir.
2014).

Nowhere

in

plaintiff’s

complaint

does

she

allege

participation in a protected activity. Rather, the retaliation
complained of hinges on complaining to her supervisor about a
“hostile work environment,” which was comprised of simply her
supervisor’s denying her request for holiday time around Christmas.
While such a denial may have been inconvenient and disappointing,
it

cannot

plausibly

constitute

an

actionable

hostile

work

environment nor qualify as a protected activity entitled to Title
VII protection. Therefore, even if the retaliation alleged in Count
III were implicitly contained in plaintiff’s July 16, 2013 EEOC
charge, plaintiff fails to state a plausible claim for retaliation
upon which relief can be granted.
While Count III must be dismissed pursuant to Rule 12(b)(6),
Counts I and II plead plausible claims of racial discrimination
in violation of Title VII. A prima facie case of racial
discrimination requires plaintiff show (1) she belongs to a
protected class, (2) she was qualified to do the job, (3) she was
subjected to adverse employment action, and (4) her employer
treated similarly situated employees outside her class more
favorably. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.
2008). For the purposes of a motion to dismiss for failure to

4

state a claim, the court accepts plaintiff’s well-pled facts as
true and draws all reasonable inferences in her favor. Am. United
Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007).
The parties do not dispute that plaintiff’s complaint
sufficiently pleads the first three elements required for a prima
facie case of discrimination: plaintiff is white, was reasonably
qualified in education and skill to do her job, and was
terminated from her position on or about June 12, 2013 receiving
a letter on or about June 26, 2013 rescinding her transfer to the
UAB Cancer Center as a result of that termination.
Beyond these undisputed elements, plaintiff’s complaint
sufficiently pleads the final element required for a prima facie
case for racial discrimination. In both Counts I and II,
plaintiff alleges that black, similarly situated employees were
not terminated for HIPAA violations. Plaintiff’s complaint
specifically alleges in Exhibit A that Fran McCurdy, a
supervisor, told plaintiff that a black female under her
supervision was reprimanded for a HIPAA violation and was not
terminated. Fed. R. Civ. Proc. 10(c). While the “court is not
bound to accept as true a legal conclusion couched as a factual
allegation,” plaintiff’s complaint pleads a sufficient factual
basis for disparate treatment “enough to raise a right to relief
[for racial discrimination] above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Therefore,
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plaintiff’s complaint sufficiently nudges Count I and II “across
the line from conceivable to plausible.” Ashcroft v. Iqbal, 556
U.S. 662 (2009) quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
CONCLUSION
For the reasons detailed above, the court will by separate
order grant defendants’ motion as to Count III and as to all counts
against Dr. Vetter in his individual capacity, but will deny
defendants’ motion as to Count I and II against UAB Hospital and
Dr. Vetter in his official capacity.

DONE this 3rd day of October, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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