Sharp v. EMHFL, Inc.
Filing
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MEMORANDUM OPINION & ORDER: IT IS ORDERED: 1. that Defendant's 8 Partial Motion to Dismiss Plaintiff's claims Inc is GRANTED; 2. that Defendant shall have 14 days from entry of this Order to file its Answer to Plaintiff's claim. Signed by Judge Joseph M. Hood on 9/28/2018.(KM)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MARY ELIZABETH SHARP,
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Plaintiff,
v.
EMHFL, INC. d/b/a LANCASTER
DIAGNOSTIC CENTER,
Defendant.
Civil Case No.
5:17-cv-00503-JMH
MEMORANDUM OPINION AND ORDER
***
This matter is before the Court upon Defendant EMHFL, Inc.’s
Partial Motion to Dismiss Plaintiff’s claims [DE 8].
Plaintiff
has filed a Response [DE 11], and Defendant has filed a Reply [DE
12] in further support of its Motion.
For the reasons which
follow, Defendant’s Partial Motion to Dismiss will be granted.
I.
Plaintiff Mary Elizabeth Sharp avers that she was employed by
Defendant,
EMHFL,
Inc.
d/b/a
Lancaster
Diagnostic
Center
(“EMHFL”), from 2002 until her employment was terminated by the
defendant on July 31, 2017, following a complaint regarding patient
treatment at Defendant’s Lancaster Diagnostic Center facility.
While it is not entirely clear what the relationship between the
various entities is, she also avers that she had previously worked
at the Ephraim McDowell Diagnostic Center from 2005 to 2014 and
moved to the Lancaster Diagnostic Center in 2014.
Plaintiff, a homosexual woman, avers that, in fact, her
termination was the result of sex discrimination because of her
sexual orientation and that similarly situated men, heterosexuals,
and those who have not engaged in protected activity did not have
their employment terminated under similar circumstances.
She
further avers that she was retaliated against for filing a charge
of discrimination with the EEOC and then bringing a claim in this
Court
against
Ephraim
McDowell
Regional
Medical
Center,
Inc.
(“EMRMC”) in 2007 averring gender discrimination based on pay and
failure to promote under the Equal Pay Act (“EPA”), Title VII, and
KCRA and various retaliation theories.
See Civil Case No. 5:07-
CV-0362-JMH. Sharp voluntarily dismissed her claims of genderbased failure to promote and retaliation, and the Court granted
summary judgment in favor of EMRMC on Sharp’s remaining genderbased pay discrimination claim on February 24, 2010, because Sharp
“failed to produce evidence creating a triable issue of fact that
the [nondiscriminatory] reasons proffered by the Defendant are
pretextual.”
II.
As an initial matter, Plaintiff cannot state a claim for
discrimination on the basis of sex due to her sexual orientation
2
under Title VII on the facts before this Court as a matter of law.
See Fed. R. Civ. P. 12(b)(6); Fed. R. Civ. P. 8(a)(2) (stating
that a pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”); Ashcroft
v. Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)) (“To survive a motion to
dismiss,
a
complaint
must
contain
sufficient
factual
matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’”)
42 U.S.C.
§
2000e-2(a)(1)
prohibits
“discriminat[ion]…
because of … sex....” While the Supreme Court has recognized that
this includes claims based on sex stereotyping and same-sex sexual
harassment, see Price Waterhouse v. Hopkins, 490 U.S. 228, 251-52
(1989); Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 8081 (1998), the United States Court of Appeals for the Sixth Circuit
has held, however, that the mere fact of that a plaintiff has a
particular
sexual
orientation
discrimination on the basis of
cannot
be
used
to
claim
“sex” entitled to Title VII
protection and does not recognize discrimination claims based on
perceived sexual orientation of a plaintiff as discrimination
based on sex, generally.
Vickers v. Fairfield Med. Ctr., 453 F.
3d 757, 764 (6th Cir. 2006) (distinguishing claims based on
perceived sexuality from failure to conform to gender stereotypes
and declining to extend Oncale).
3
While courts in other circuits
have held that discrimination on account of sexual orientation is
sex discrimination under Title VII, see Hively v. Ivy Tech. Comm.
Col.,
853
F.3d
339,
340-41
(7th
Cir.
2017)
(en
banc)
(“discrimination on the basis of sexual orientation is a form of
sex discrimination”); Zarda v. Altitude Express, Inc., 883 F.3d
100, 108 (2d Cir. 2018) (en banc), petition for cert. filed, (U.S.
May 29, 2018) (No. 17-1623) (“Title VII prohibits discrimination
on the basis of sexual orientation as discrimination ‘because of
…sex’”), this Court is bound by the Sixth Circuit’s decision in
Vickers.
See, e.g., Grimsley v. Am. Showa, Inc., Case No. 3:17-
cv-24, 2017 WL 3605440, at *4 (S.D. Ohio Aug. 21, 2017) (citing
Tumminello v. Father Ryan High School, Inc., 678 App’x 281, 285
n.1 (6th Cir. 2017)) (“Vickers remains controlling law until
overruled by the Sixth Circuit sitting en banc, or until the United
States Supreme Court issues a contrary ruling.”).1
III.
Finally,
Plaintiff
has
failed
to
establish
“sufficient
factual matter, accepted as true, to ‘state a claim to relief [for
1 Twelve years have passed since the Vickers decision and with them many
assumptions and understandings about sexual orientation. Given the development
of jurisprudence by other circuits that encompasses sexual orientation
discrimination within the definition of sex discrimination for the purposes of
Title VII, the Court of Appeals for the Sixth Circuit may need to consider this
issue and its rationale for its previous decision anew. Notably, the Vickers
court relied on Dawson v. Brumble & Brumble, 398 F.3d 211 (2d Cir. 2005)
extensively in its decision. Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 76364 (6th Cir. 2006). The United States Court of Appeals for the Second Circuit
explicitly overruled Dawson in Zarda v. Altitude Express, Inc., 883 F.3d 100,
108 (2d Cir. 2018).
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retaliation under Title VII or the KCRA] that is plausible on its
face.’” Doe v. Miami Univ., 882 F.3d 579, 588 (6th Cir. 2018)
(citing Ashcroft, 556 U.S. at 678). While a Plaintiff need not
establish a prima facie case of discrimination to survive a motion
to dismiss, but a plaintiff must “‘plead[ ] factual content that
allows
the
court
to
draw
the
reasonable
inference
that
the
defendant is liable for the misconduct alleged.’” Keys v. Humana,
Inc., 684 F.3d 605, 608 (6th Cir. 2012) (quoting Iqbal, 556 U.S.
at 678) (construed in context of Title VII); Kentucky Comm'n on
Human Rights v. Commonwealth, 586 S.W.2d 270, 271 (Ky. Ct. App.
1979) (“Kentucky courts often look to interpretation of the federal
law for guidance in applying the Kentucky Civil Rights Act.”).
“‘[A] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Plaintiff’s factual averment in support of her retaliation
claim is that she had made a prior discrimination claim against an
entity that is somehow related to Defendant, at a different
location, many years prior to the termination of her employment by
the defendant in this matter. In order to establish a prima facie
case of retaliation, Sharp must establish: “(1) she engaged in
activity protected by Title VII [or KCRA]; (2) this exercise of
protected rights was known to defendant; (3) defendant thereafter
took adverse employment action against the plaintiff . . .; and
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(4) there was a causal connection between the protected activity
and the adverse employment action.” Morris v. Oldham County Fiscal
Court, 201 F.3d 784, 792 (6th Cir. 2000). The Court is not
convinced
that
plaintiff’s
factual
allegations
meet
the
plausibility standard required by Twombly and Iqbal and fail to
provide sufficient information to put this Defendant on notice of
a claim. Setting aside whether Defendant knew of the case against
this other entity, the passage of 10 years suggests no causality
without something more. See Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 273-74; 121 S. Ct. 1508 (2001) (20 months between
protected activity and adverse action “suggests, by itself, no
causality at all”); see also Nguyen v. City of Cleveland, 229 F.3d
559, 566-67 (6th Cir. 2000) (“[P]revious cases that have permitted
a prima facie case to be made on the proximity of time have all
been short periods of time, usually less than six months”); Cooper
v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986) (no
causal connection where employment decision occurred 4 months
after plaintiff filed an EEO Complaint).
This claim shall be
dismissed, as well.
Accordingly, IT IS ORDERED:
(1)
that Defendant’s Partial Motion to Dismiss Plaintiff’s
claims [DE 8] is GRANTED;
(2)
that Defendant shall have fourteen (14) days from entry
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of this Order to file its Answer to Plaintiff’s remaining claims.
This the 28th day of September, 2018.
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