Gaspard v. Our Lady of Lourdes Regional Medical Center Inc
MEMORANDUM RULING re 4 MOTION to Dismiss Complaint filed by Our Lady of Lourdes Regional Medical Center Inc, 49 Third MOTION to Amend/Correct 40 Second MOTION to Amend/Correct 19 Amended Complaint With consent sought but not obtained With Opp osition Third MOTION to Amend/Correct 40 Second MOTION to Amend/Correct 19 Amended Complaint With consent sought but not obtained With Opposition filed by Lisa Kayne Gaspard, 56 Fourth MOTION to Amend/Correct 49 Third MOTION to Amend/Correct 40 Second MOTION to Amend/Correct 19 Amended Complaint With consent sought but not obtained With Opposition Third MOTION to Amend/Correct 40 Second MOTION to Amend/Correct 19 Amend Fourth MOTION to Amend/Correct 49 Third MOTION to Amend/Cor rect 40 Second MOTION to Amend/Correct 19 Amended Complaint With consent sought but not obtained With Opposition Third MOTION to Amend/Correct 40 Second MOTION to Amend/Correct 19 Amend filed by Lisa Kayne Gaspard, 31 MOTION to Strike filed by Our Lady of Lourdes Regional Medical Center Inc, Franciscan Missionaries of Our Lady Health System Inc, 40 Second MOTION to Amend/Correct 19 Amended Complaint With consent sought but not obtained filed by Lisa Kayne Gaspard. Signed by Judge Tucker L Melancon on 3/24/09. (crt,Jordan, Paula)
UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA L A F A Y E T T E -O P E L O U S A S DIVISION L isa Kayne Gaspard v e rs u s O u r Lady of Lourdes Regional M e d ic a l Center, Inc. C iv il Action 08-622 J u d g e Tucker L. Melançon M a g istra te Judge Methvin
M EM ORANDUM RULING B e f o re the Court are: (1) defendant's Motion To Dismiss Pursuant To Rule 12(B)(6) O f The Federal Rules Of Civil Procedure [Rec. Doc. 4] and plaintiff's opposition [Rec. Doc. 1 1 ];(2 ) defendant's Motion To Dismiss Supplemental And Amending Complaint Pursuant T o Rule 12(B)(6) Of The Federal Rules Of Civil Procedure [Rec. Doc. 31], plaintiff's o p p o s itio n [Rec. Doc. 35] and defendant's reply [Rec. Doc. 38]; (3) Plaintiff's Motion for L e a v e to File Second Supplemental and Amending Complaint [Rec. Doc. 40] and d ef en d an t's opposition [Rec. Doc. 42]; (4) Plaintiff's Motion for Leave to File Third S u p p le m e n ta l and Amending Complaint [Rec. Doc. 49] and defendant's opposition [Rec. D o c s. 55]; and, (5) Plaintiff's Motion for Leave to File Fourth Supplemental and Amending C o m p l a in t [Rec. Doc. 56]; (4). For the following reasons, the Court will deny plaintiff's m o t io n s and grant defendant's motions. I. Procedural Background In her original Complaint filed in this Court on May 7, 2008, plaintiff, Lisa Kayne G a sp a rd , alleged essentially three categories of wrongdoing by defendant, Our Lady of
L ourdes Regional Medical Center, Inc. ("Lourdes"): (1) the storage of outdated frozen tissue; (2 ) improper sterilization of orthopedic implants; and (3) leakage from the ceiling above her w o rk s p a c e . R. 1, ¶¶ 2, 19-20. Plaintiff further alleged that: (1) she suffered reprisal from L o u rd e s for having complained about one or more of the alleged wrong doings; (2) that n o th in g was done to address or remedy her complaints; and (3) that she contracted hepatitis B as a result of the ceiling leak. Plaintiff alleged that Lourdes violated the following state la w s : LSA C.C. art 2315, et seq.; LSA R.S. 30:2180, Louisiana Sanitary Code, Chapter X X V II, Section 27:023 et seq. and Section 27:025, et seq.; the Louisiana Solid Waste R e g u la tio n s ; and LSA R.S. 23:967, the Louisiana "Whistle Blower Statute." R. 1, ¶¶ 26, 27. P la in ti f f also alleged that defendant violated federal laws including 42 U.S.C. 6992, the " M e d ic a l Waste Tracking Act," and the Occupational Safety and Health Administration re g u la tio n s , including, but not limited to 29 C.F.R. Part 1910.1030, et seq. and OSHA In s tru c tio n CPI, 2-2.44C, et seq. Id. ¶ 26.1 Plaintiff further alleged defendant's liability for " a n y and all civil and criminal penalties provided for by 42 U.S.C. 6992(d) of the Medical W a ste Tracking Act." Id. On July 14, 2008, defendants filed a Motion to Dismiss plaintiff's C o m p la in t pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, contending that th e Court is without federal subject matter jurisdiction based on plaintiff's allegations under th e "Medical Waste Tracking Act" and the OSHA regulations, in that neither constitutes a s u f f ic ie n t basis for a private cause of action. Plaintiff's allegations included, "any and all other federal and/or state laws created to regulate the storage, transportation, incineration, and/or disposal of medical waste." Id. 2
O n August 18, 2008, plaintiff filed her First Supplemental And Amending Complaint, R . 19, adding an additional defendant, Franciscan Missionaries of Our Lady Health System, In c . Plaintiff added the allegation that defendants violated the following federal law: Federal F o o d , Drug and Cosmetic Act ("FDCA"), 21 U.S.C. 351, et seq.; OSHA regulations, 29 U .S .C . 651 et seq. and 29 U.S.C. 660, et seq.; and, the "Joint Commission of Accredited H o s p ita ls Organization ("JCAHO"). R. 19, ¶ 26. The Magistrate Judge granted plaintiff's m o tio n to file her first supplemental and amending complaint on August 18, 2008. R. 18. D e f en d a n ts filed a second Motion to Dismiss plaintiff's First Supplemental and Amending C o m p la in t pursuant to Rule 12(b) of the Federal Rules of Civil Procedure contending that p la in tif f failed to state a claim upon which relief can be granted in that her amended c o m p la in t merely asserted additional non-existent causes of action: (1) a violation of the F D C A , which also implies the existence of claims under the Medical Device Amendments to the FDCA, 21 U.S.C. § 360c, et seq.; (2) a violation of JCAHO standards; and, (3) re ta lia tio n for filing a complaint with OSHA. R. 31. T h e re a fte r, on December 19, 2008 plaintiff filed a Motion for Leave to File a Second S u p p le m e n ta l and Amending Complaint, R. 40, in which plaintiff proposed adding to her G e n e ra l Allegations, ¶ 25, that in December, 2008, defendants questioned plaintiff's coe m p lo ye e s about "plaintiff's sexual orientation and general `lifestyle'" and "the fact that p lain tiff is a lesbian" and then advised plaintiff of her demotion to Senior Supply Tech with p a rt time status and a reduction in her salary of "$7,000 to $12, 000 per year" R. 40, ¶ ¶ 25b,
2 5 c . Plaintiff did not state the jurisdictional basis for any of the allegations contained in her p ro p o se d Second Supplemental and Amending Complaint. O n February 6, 2009, plaintiff filed a subsequent Motion for Leave to File Third S u p p le m e n ta l and Amending Complaint, R. 49, proposing to add to her General Allegations th a t she had filed a Charge of Discrimination with the Equal Employment Opportunity C o m m is s io n ("EEOC") and had received a Dismissal And Notice Of Rights letter dated J a n u a ry 23, 2009. R. 49, ¶ 25f, Exh. B. Plaintiff further proposed amending her complaint to add Title VII claims of retaliation and discrimination, specifically asserting claims for sex d is c rim in a tio n and sexual preference discrimination as well as a related state cause of action u n d e r LSA R.S. 23:322, et seq., Louisiana Employment Discrimination Law. Id. M o st recently, on March 19, 2009, plaintiff filed a Motion for Leave to File Fourth S u p p le m e n ta l and Amending Complaint in which she proposed amending the General A lle g a tio n s of her complaint to include allegations that on "February 13, 2009, it was d is c o v e re d tissue implanted on a patient had not been logged by Our Lady of Lourdes, Inc" a n d "the tissue tracking policy had not been followed." R. 56, ¶ 25g. A s set out above, defendants filed motions to dismiss in response to Plaintiff's O rig in a l Complaint and her First Supplemental and Amending Complaint. Defendants filed o p p o s itio n s to plaintiff's motions to file a second and third amended complaint, contending th a t none of plaintiff's allegations "create" a valid federal cause of action in this case and th e re f o re the proposed amendments should be denied. As of this date, no opposition has
b e e n filed to plaintiff's proposed fourth amendment. The Court will addressed these related m o t io n s as follows. I I. Motion to Dismiss Standard R u le 12(b) (6) of the Federal Rules of Civil Procedure provides for dismissal of a p le a d in g that fails to state a claim upon which relief can be granted. A Rule 12(b)(6) motion to dismiss "admits the facts alleged in the complaint, but challenges plaintiff's right to relief b a se d upon those facts." Ramming v. U.S., 281 F.3d 158, 162 (5 th Cir.,2001) (quoting TelP h o n ic Services, Inc. v. TBS International, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992)) . D is m is s a l cannot be upheld unless it appears beyond doubt that the plaintiffs would not be e n title d to recover under any set of facts that they could prove in support of their claim. Id. It is black-letter law that a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to be evaluated only on the pleadings. Drs. Bethea, Moustoukas and Weaver LLC v. St. P a u l Guardian Ins. Co., 376 F.3d 399, 403 (5 th Cir.,2004). However, conclusory allegations o r legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Id. III. Motion to Amend Standard "Rule 15(a) requires a trial court `to grant leave to amend freely, and the language of th i s rule evinces a bias in favor of granting leave to amend.' A district court must possess a `substantial reason' to deny a request for leave to amend but `leave to amend is by no m e a n s automatic.' Decisions concerning motions to amend are `entrusted to the sound
d i s c r e t io n of the district court.' In deciding whether to grant leave to amend, the district c o u rt may consider a variety of factors in exercising its discretion, including undue delay, bad f a ith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by a m e n d m e n ts previously allowed, undue prejudice to the opposing party by virtue of a llo w a n c e of the amendment, and futility of the amendment." Jones v. Robinson Property G r o u p , L.P., 427 F.3d 987, 994 (5 th Cir. 2005) (internal citations omitted). IV . Analysis P la in t if f alleged a number of Federal and state law claims in her Complaint, First S u p p le m e n t a l and Amended Complaint and her proposed second and third amended c o m p la in ts . Defendants argue that plaintiff failed to state a claim with regard to all of the a lle g e d Federal claims, and therefore, her amendments would be futile. In the event plaintiff h a s failed to allege a viable Federal claim, the Court has no subject matter jurisdiction in this a c tio n . Thus, in order to determine whether or not plaintiff's proposed amendments are futile th e Court must consider these claims in light of defendants' motions to dismiss and o p p o s itio n memoranda. A . Medical Waste Tracking Act In 1988, the United States Congress passed the Medical Waste Tracking Act (" M W T A " ), 42 U.S.C. § 6992 et seq., under the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992. 42 U .S.C . § 6992(a)-(k); PL 100-582, 1988 HR 3515;
w w w .ep a .g o v /ep a w a ste /n o n h a z /in d u st ria l/m e d ic a l/tra c k in g .h tm . The MWTA regulations
a u th o riz e d a two-year pilot tracking program to ensure that medical waste was sent to proper d i sp o s a l facilities: § 6992. Scope of demonstration program for medical waste (a ) Covered States T h e States within the demonstration program established under this subchapter f o r tracking medical wastes shall be New York, New Jersey, Connecticut, the S ta te s contiguous to the Great Lakes and any State included in the program th ro u g h the petition procedure described in subsection (c) of this section, e x c ep t for any of such States in which the Governor notifies the Administrator u n d e r subsection (b) of this section that such State shall not be covered by the p ro g ra m . ... (d ) Expiration of demonstration program T h e demonstration program shall expire on the date 24 months after the ef fe ctiv e date of the regulations under this subchapter. E P A promulgated the MWTA regulations on March 24, 1989. The regulations went into e f f e c t on June 24, 1989 and expired on June 21, 1999 and were in effect in four states (New Y o rk , New Jersey, Connecticut, Rhode Island) and Puerto Rico. Id. As Louisiana was not o n e of the states covered under the federal program and the program expired long before p la in tif f 's alleged incidents, plaintiff has no federal cause of action under the MWTA. B. OSHA P la in tif f 's Complaint and Amended Complaint alleges defendants violated OSHA re g u la tio n s 29 C.F.R. Part 1910.1030, et seq., 29 U.S.C. 651 et seq., 29 U.S.C. 660, et seq, a n d OSHA Instruction CPL 2-2.44C, et seq. It is long-established in the Fifth Circuit that " C o n g re s s did not intend OSHA to create a new action for damages in favor of employees." 7
J e te r v. St. Regis Paper Co., 507 F.2d 973, 976 (5 th Cir. 1975) (Nowhere in the language of th e Act, its legislative history, or in the statutory declaration of purpose and policy in the Act itse lf is there the slightest implication that Congress considered OSHA creating a private rig h t of action for violation of its terms. See 1970 U.S.Code Cong. & Admin.News, pp. 51775 2 4 1 ; 29 U.S.C.A. § 651). Accordingly, plaintiff has no federal cause of action under O SH A . C . JCAHO I n her First Amended Complaint and proposed fourth amendment, plaintiff alleges a c a u se of action under the Joint Commission of Accredited Hospitals Organization (" JC A H O " ).2 The JCAHO is an independent, not-for-profit organization which
" p ro m u lg a t e s standards to which hospitals voluntarily subject themselves for JCAHO a c cre d ita tio n ." www.jointcommission.org. It is axiomatic that an accrediting organization s u c h as the JCAHO does not provide a cause of action, and plaintiff does not provide any a u th o r it y, legislative history, Louisiana case law or persuasive authority to support her a lle g e d federal cause of action under the JCAHO. While the Court is unable to locate any ju ris p ru d e n c e in any federal circuit as to this issue, the district court in Kadlec Medical C e n te r v. Lakeview Anesthesia Associates, 2006 WL 1328872, 2 (E.D.La.,2006) (J. E n g le h a rt), has noted that "JCAHO guidelines do not provide a negligence cause of action." Id . Plaintiff has no private cause of action against defendants for allegedly violating a Plaintiff alleges in her fourth proposed supplemental amendment that defendants violated the "JAHCO," sic, by their failure to follow "the tissue tracking policy." R. 56. 8
J C A H O standard. D . FDCA Plain tiff also alleges in her First Amended Complaint and proposed fourth amendment a cause of action under the Federal Food, Drug and Cosmetic Act ("FDCA"), 21 U.S.C. 351, e t seq. Plaintiff alleges that defendants' actions "are in violation of" the FDCA and that she is entitled to civil penalties and damages as a result of retaliatory actions as an "Informant" u n d e r the FDCA.3 R. 19, ¶26. Section 337 of the FDCA provides: (a ) Except as provided in subsection (b) of this section, all such proceedings f o r the enforcement, or to restrain violations, of this chapter shall be by and in th e name of the United States. It is well settled that the FDCA creates no private right of action. See 21 U.S.C. § 337(a) (re stric tin g FDCA enforcement to suits by the United States); Scott v. Pfizer Inc., 182 F e d .A p p x . 312, 315, (5 th Cir.),2006) (unpublished opinion) (plaintiff's claims dismissed b e c au s e he has not shown that either the FDCA or the MDA create a private right of action. S e e 21 U.S.C. § 337); In re Orthopedic Bone Screw Prods. Liability Litig., 159 F.3d 817, 824 (3 d Cir.1998) ("It is ... well established that Congress has not created an express or implied p riv a te cause of action for violations of the FDCA or the MDA."); PDK Labs., Inc. v. F r ie d la n d e r, 103 F.3d 1105, 1113 (2d Cir.1997) (holding that plaintiff's suit "represents an im p e rm iss ib le attempt to enforce the FDCA through a private right of action"); Mylan Labs., I n c . v. Matkari, 7 F.3d 1130, 1139 (4th Cir.1993) (same); McNeeley v. Danek Medical, Inc., Plaintiff alleges in her fourth proposed supplemental amendment that defendants violated the "FDA" by their failure to follow "the tissue tracking policy." R. 56. 9
1 9 9 9 WL 1117108, *2 (W.D.La. 1999) (J. Trimble) (unpublished opinion)("... neither the F D C A nor the MDA provide for a private right of action."). Thus, plaintiff has alleged no f e d e ra l cause of action under the FDCA. E . Title VII In her motions to file a second and third amending complaint, plaintiff seeks to add a lle g a tio n s that defendants questioned her about her "sexual orientation and general `lif e style '" and "the fact that plaintiff is a lesbian," as well as claims of discrimination and re ta lia tio n pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2 0 0 0 e -5 , and the Louisiana Employment Discrimination Law, LSA R.S. 23:322, et seq. T itle VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an e m p l o ye r ... to discriminate against any individual with respect to his compensation, terms, c o n d itio n s , or privileges of employment, because of such individual's race, color, religion, s e x or national origin" 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has long established that sexual harassment is a form of gender discrimination. Meritor Savings Bank, FSB v. V in s o n , 106 S.Ct. 2399, 2404 (1986) ("[w]ithout question, when a supervisor sexually h a ra ss e s a subordinate because of the subordinate's sex, that supervisor `discriminate[s]' on t h e basis of sex." However, not all harassment in the workplace is actionable under Title V II. The Fifth Circuit has clearly stated that Title VII does not protect against discrimination o n any basis relating to sexual orientation. Blum v. Gulf Oil Corp., 597 F.2d 936 (5th C ir .1 9 7 9 ).
T h e proposed amendments to plaintiff's General Allegations fail to demonstrate any typ e of conduct related to plaintiff's gender or that plaintiff was subjected to any d isa d v a n tag e o u s terms or conditions of employment based on gender or sexual harassment. N o r does plaintiff propose any allegations which could constitute same-sex harassment.4 R a th e r, plaintiff describes her alleged discrimination and sexual harassment as being related to her "sexual orientation." R. 40, ¶ 25b. Based on the controlling Fifth Circuit
jurisp rud en ce , the proposed causes of action under Title VII in plaintiff's second and third a m e n d e d complaints are a futile attempt to assert a federal cause of action in this case and th e motions for leave to file must therefore be denied. C o n c lu s io n A s the Court has determined that plaintiff failed to plead a federal cause of action in h e r Original Complaint, her First Supplemental and Amending Complaint or in any of her p ro p o s e d amended complaints, plaintiff's motions for leave to file the second, third and f o u rth amended complaints will be denied and this case must be dismissed for lack of subject
The Supreme Court outlined the test for same-sex harassment in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). In order to show that an incident of same-sex harassment constitutes sex discrimination a plaintiff can: (1) show that the alleged harasser made "explicit or implicit proposals of sexual activity" and provide "credible evidence that the harasser was homosexual," Id. at 80; (2) demonstrate that the harasser was "motivated by general hostility to the presence of [members of the same sex] in the workplace," Id.; or, (3) "offer direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." Id. 11
m a tte r jurisdiction.5 See Fed.R.Civ.P. 12(b)(1), (h)(3); Nauru Phosphate Royalties, Inc. v. D r a g o Daic Interests, Inc., 138 F.3d 160, 163 n. 1 (5th Cir.1998) (A case that does not p re se n t either federal question jurisdiction or diversity jurisdiction should be dismissed for la c k of subject matter jurisdiction). "Inferior federal courts are courts of limited jurisdiction. U n le ss a dispute falls within the confines of the jurisdiction conferred by Congress, such c o u rts do not have the authority to issue orders regarding its resolution. The question of s u b je c t matter jurisdiction can never be waived. Nor can jurisdiction be conferred by conduct o r consent of the parties. Such jurisdiction goes to the core of the court's power to act, not m e re ly to the rights of the particular parties." Giannakos v. M/V Bravo Trader , 762 F.2d 1 2 9 5 , 1297 (5 th Cir.,1985) (internal citations omitted). "When a court dismisses all federal c la im s before trial, the general rule is to dismiss any pendent claims. However, the dismissal o f the pendent claims should expressly be without prejudice so that the plaintiff may refile h is claims in the appropriate state court." Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5 th C ir. 1999). As plaintiff's federal claims will be dismissed by this ruling, the Court does not have o rig in a l jurisdiction over plaintiff's remaining state law claims alleged in her Original C o m p la in t and First Supplemental and Amending Complaint and those claims will be d is m is s e d without prejudice.
In her Original Complaint, plaintiff alleges that the Court has federal question jurisdiction in this matter pursuant to 28 U.S.C. §§1331, 1343. 12
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