Landrum v. Delta Regional Medical Center
Filing
41
MEMORANDUM OPINION re 40 Final Judgment. Signed by Magistrate Judge Jane M. Virden on 3/6/15. (ncb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
EZELL LANDRUM
PLAINTIFF
VS.
CIVIL ACTION NO.: 4:13-cv-180-JMV
DELTA REGIONAL MEDICAL CENTER
DEFENDANT
MEMORANDUM OPINION
This matter is before the court on Defendant’s Supplemental Motion for Summary
Judgment [36] as invited by this court’s prior order on Defendant’s Motion for Summary
Judgment [35]. Upon due consideration of the supplemental motion, Plaintiff’s response, the
reply, and relevant law, the court finds the motion well taken and, it should be granted as
explained below.
By its prior order [35], this court noted that though Plaintiff failed to check the box on his
form pro se complaint [4] marked “ADA” ( aka “the Americans with Disabilities Act”
hereinafter sometimes “the Act”) as a basis for the asserted retaliation claim, the narrative
language used in his complaint is that familiar to the Act. However, because the Defendant did
not address whether the retaliation claim, properly construed, was one brought under the ADA,1
the court did not rule on the issue. The Defendant has now raised the issue by supplemental
motion for summary judgment, and it makes two arguments in opposition to any alleged
retaliation claim under the ADA. First, Defendant argues Plaintiff’s complaint does not assert an
ADA retaliation cause of action because Plaintiff did not check the box “ADA” in his form
complaint or reference the Act in his EEOC charge. Second, Defendant contends even had
Plaintiff done so, certain Fifth Circuit decisions preclude Plaintiff, as a matter of law, from
1
In its original motion for summary judgment, Defendant addressed the retaliation claim under Title VII, and the
court found summary judgment in Defendant’s favor was proper on that claim.
establishing a prima facia case of retaliation under the ADA. In particular, defendant argues in
order to be actionable, the alleged retaliation must have been in response to an employee’s
complaint of the employer’s discrimination against that employee or another employee.
Defendant asserts there is no cognizable claim for retaliation in response to an employee’s
complaint of the employer’s discrimination against non-employees, such as the mentally ill
patients at the Defendant hospital.
The court is prepared to rule on the matter. In doing so, it will adopt by reference, as if
fully stated herein, its recitation of facts and standard of review set out in its original opinion
[35].
Law and Analysis
In addressing Defendant’s arguments, the court considers the lenient pleading standard
for pro se plaintiffs. Even though plaintiff did not check the box marked “ADA” in his
complaint or reference it in his EEOC charge, both the complaint and EEOC charge contain
narrative language applicable to ADA claims (i.e., reasonable accommodations necessitated by
an asserted physical/mental condition). Specifically, the charge filed by the Plaintiff and
attached to his complaint recites in pertinent part as follows:
I have also personally requested that Jessica Willis provide
reasonable accommodations for mentally disabled patients along
with requesting changes with department practices to promote a
safe environment …. Retaliation based on my ongoing request for
(Director) Jessica Willis to provide reasonable accommodations
and safe environment for mentally disabled patients. The reason
given for my termination by DRMC Human Resource Director and
Department Director was carefully, strategically and constructively
utilized for a grand opportunity to terminate me.
Compl. [4] at 9. Similarly, his pro se complaint states, under the portion requiring a narrative
description of the complained of conduct: “Plaintiff's earlier complaint of discrimination or
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opposition to acts of discrimination. (If you are alleging Retaliation, state the acts or events that
you claim constitute retaliation: ‘repeated requests for reasonable accommodation and safe
environment or mentally disturbed ….’)” Id. at 3.
Given the plain language of the EEOC Charge and the pro se complaint, the court
ordinarily would not be convinced Plaintiff’s failure to formally reference the ADA in his pro se
complaint and/or in the EEOC charge is fatal to a retaliation claim under the ADA. However, in
this case, the Plaintiff, by way of responsive pleading, has confirmed that as a matter of fact, he
did not intend to make a claim under the ADA since he “had no idea that an action could proceed
under the ADA . . .” On the basis of this concession and for the additional reason, as explained
below, even had such a claim been asserted or could be construed to have been asserted in light
of plaintiff’s pro se status, the Defendant is nevertheless entitled to summary judgment.
Defendant argues, irrespective of whether Plaintiff expressly referenced the ADA in his
complaint and/or EEOC charge, as a matter of the substantive law, an employee may not assert a
retaliation claim if the adverse employment action (in this case, termination) was in response to
the employee’s complaints about treatment of non-employees—such as the patients of the
defendant hospital. For support, Defendant relies on cases holding a retaliation claim under Title
VII does not protect an employee from adverse action for complaining about alleged
discrimination against non-employees. See Def.’s Supplemental Br. in Further Supp. of Mot. for
Sum. J. [36] at 4-6. This court acknowledges this proposition is correct under Title VII, but in so
far as Plaintiff’s retaliation claim at issue here pertains to the ADA, the cases relied on by
Defendant are simply not applicable.
Unlike Title VII, the ADA is considerably broader. See Americans with Disabilities Act
of 1990, 42 U.S.C. § 12101, et seq. (2015). While Title I relates to private employers, state and
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local governments, employment agencies and labor unions and prohibits an employer from
discriminating against qualified applicants and employees on the basis of disability, Title II
applies to state and local government entities and prohibits them from discriminating against
individuals on the basis of disability; and Title III covers public accommodations and commercial
facilities prohibiting discrimination, such as in hotels, restaurants, and doctor’s offices. Id. Further,
ADA Code Section 12203, makes it unlawful to retaliate against a person for exercise of the
rights conveyed. See 42 U.S.C. § 12203 (2015).
In short, the present issue is not whether a Title VII retaliation claim is strictly limited to
conduct of and concerning employees. Instead, it is whether the Plaintiff engaged in activity
protected under Title II or III of the ADA and, thus, is protected from retaliation under the Act.
Specifically, the question is whether Landrum, a public hospital employee, is protected from
retaliation for allegedly requesting or complaining to the public hospital that its
supervision/treatment of its mentally ill patients should be different from that dictated by the
hospital’s adopted protocols.
A dearth of Fifth Circuit case law exists on this precise point, but a string of cases
decided by the Fourth Circuit, which culminated in Freilich v. Upper Chesapeake Health
Incorporated, 313 F.3d 205 (4th Cir. 2002) addresses the issue spot on. In that case, Dr.
Freilich, a nephrologist, worked at the defendant Hospital. Id. at 210. During her tenure, she
advocated for the rights of her patients to improve their quality of care, including “complain[ing]
that the outsourcing of quality assurance and oversight services for dialysis patients led to an
improper standard of care.” Id. Thereafter, the hospital non-renewed her medical privileges for
improper “ethics and behavior.” Id. She then filed suit, alleging the hospital denied her
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application for reappointment in violation, inter alia, of the ADA because she advocated for the
rights of her dialysis patients.
With respect to her retaliation claim, the Freilich court affirmed the district court’s
dismissal of the claim under Rule 12(b)(6) and explained:
Dr. Freilich brings a claim for retaliatory discharge under the ADA
…. She alleges that [the hospital] terminated her hospital privileges
“because she strongly opposed and voiced her concerns about [the
hospital’s] practices in treating dialysis patients.” Specifically, Dr.
Freilich contends that her opposition to [the hospital’s] decision to
outsource quality oversight and quality assurance over dialysis
services constitutes protected conduct under the ADA. Under 42
U.S.C. § 12203, “[n]o person shall discriminate against any
individual because such individual has opposed any act or practice
made unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.”
(emphasis added). In order to establish a prima facie case of
retaliation, a plaintiff must allege (1) that she has engaged in
conduct protected by the ADA; (2) that she suffered an adverse
action subsequent to engaging in the protected conduct; and (3)
that there was a causal link between the protected activity and the
adverse action. Rhoads v. FDIC, 257 F.3d 373, 392 (4th Cir.
2001). In reviewing retaliation claims, courts recognize the need
to balance the desire to encourage employees to oppose unlawful
discrimination, with “an employer's interest in maintaining a
harmonious, productive and loyal workforce.” Fitch v. Solipsys
Corp., 94 F.Supp.2d 670, 678 (D.Md. 2000).
A plaintiff need not establish that the conduct she opposed
actually constituted an ADA violation. Ross v. Communications
Satellite Corp., 759 F.2d 355, 357 n. 1 (4th Cir. 1985). But a
complainant must allege the predicate for a reasonable, good faith
belief that the behavior she is opposing violates the ADA. E.g.,
Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir.
2000).
In her complaint, Dr. Freilich alleges what at most are
violations of state medical malpractice law, not infractions of the
ADA. Dr. Freilich says that she complained orally and/or in
writing regarding the failure to transport a patient in a timely
manner; the failure to adhere to skin protocols; the failure to
address concerns regarding uncertified nurses; the failure to
diagnose a cervical fracture on a patient; the unsupervised dialysis
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of a patient; and the failure to provide correct dialysis services for
several patients. While we do not overlook the importance of
maintaining adequate levels of patient care, it is not the job of a
federal court under the ADA to referee disagreements between a
hospital and staff physician over what constitutes the appropriate
funding or manner of such care. In essence, Dr. Freilich disagrees
with the level of care being provided to some hospital patients,
which she attributes to the outsourcing of quality assurance and
quality oversight for dialysis patients. She could not, however,
reasonably believe that her disagreement with [the hospital] over
the expenditure of hospital resources constituted a violation of the
ADA.
Every disagreement over the adequacy of hospital
expenditures or the provision of patient care is not an ADA issue.
If it were, courts would be drawn into medical resource disputes
quite beyond their expertise and hospital personnel would be
diverted by litigation from their primary task of providing medical
attention to those in their charge. Hospitals are in the business of
serving persons with many kinds of disabilities, and we have noted
that “our federal disability statutes are not designed to ensure that
persons with one type of disability are treated the same as persons
with another type of disability.” Lewis v. Kmart Corp., 180 F.3d
166, 171-72 (4th Cir. 1999). Recognizing that the medical
community is best equipped to conduct the balancing that medical
resource allocations inevitably require, Congress declined to give
courts a mandate to arbitrate such disputes.
Id. at 216-17.
Although the patients in the instant case are alleged to have suffered from some form of
mental illness, rather than from kidney failure, the cases are otherwise remarkably alike. In
Freilich, for example, the doctor complained dialysis patients were not observed properly, just as
the Plaintiff in the instant case asserts mental illness patients were not supervised adequately.2
Additionally, as in Freilich, the Plaintiff here complains improper protocols for patient care were
utilized by the Defendant hospital. In short, this court finds the logic in Freilich persuasive.
2
The court finds this ironic given the Plaintiff concedes the hospital terminated him on the asserted (he contends,
pretextual) basis that he was not properly observing the mentally ill patients on his floor.
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As in Frelich, this court does not overlook the importance of maintaining adequate levels
of patient care, but it is not the role of a federal court under the ADA to umpire disagreements
between a hospital and staff over what constitutes the most appropriate manner of patient care.
Moreover, in this case, Landrum has candidly conceded he did not—and the court concludes,
could not—have reasonably believed that his disagreement with the hospital over the level of
mentally ill patients’ care constituted a violation of the ADA. While, as noted supra, a plaintiff
need not establish that the conduct she opposed actually constituted an ADA violation, a
complainant must allege the predicate for a reasonable, good faith belief that the behavior he/she
is opposing violates the ADA. Plaintiff has conceded this element is absent here. Consequently,
Plaintiff may not establish a violation of the Act.
Conclusion
For the foregoing reasons, Defendant should be granted judgment on Plaintiff’s
retaliation claim under the ADA.
IT IS, THEREFORE, ORDERED that Defendant is granted summary judgment on
Plaintiff’s retaliation claim under the ADA. A separate final judgment will be entered.
SO ORDERED, this the 6th day of March, 2015.
/s/ Jane M. Virden
__
UNITED STATES MAGISTRATE JUDGE
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