Isom v. Wesley Medical Center et al

Filing 27

ORDER denying Defendants' 6 9 18 Motions to Dismiss. Signed by District Judge Keith Starrett on September 23, 2015 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
DR. JONATHAN M. ISOM
V.

PLAINTIFF
CIVIL ACTION NO. 2:14-CV-190-KS-MTP

WESLEY MEDICAL CENTER, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons provided below, the Court denies Defendants’ Motions to
Dismiss [6, 9, 18].
I. BACKGROUND
This is a racial discrimination and retaliation case brought under Title VII and
Section 1981. Plaintiff was an anesthesiologist contracted to provide services to
Defendant Wesley Medical Center. Defendant Community Health Systems (“CHSPC”)
owns Wesley, and Defendant Michael Neurendof is its CEO. Wesley and CHSPC each
filed a Motion to Dismiss [6, 9] Plaintiff’s Title VII claims against them, and Neurendof
filed a Motion to Dismiss [18] Plaintiff’s Section 1981 claim against him.
II. STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” Great Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir.
2010) (punctuation omitted). “To be plausible, the complaint’s factual allegations must
be enough to raise a right to relief above the speculative level.” Id. (punctuation
omitted). The Court must “accept all well-pleaded facts as true and construe the

complaint in the light most favorable to the plaintiff.” Id. But the Court will not accept
as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.”
Id. Likewise, “a formulaic recitation of the elements of a cause of action will not do.”
PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d 412, 417 (5th Cir. 2010)
(punctuation omitted). “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S.
662, 679, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009).
Defendants presented an exhibit with their motions: the parties’ Service
Agreement [9-1, 9-2]. “[W]hen matters outside the pleading are presented with a
motion to dismiss under Rule 12(b)(6), a district court has complete discretion to either
accept or exclude the evidence.” Gen. Retail Servs., Inc. v. Wireless Toyz Franchise,
LLC, 255 F. App’x 775, 783 (5th Cir. 2007); see also FED. R. CIV. P. 12(d). If the Court
considers the matters outside the pleadings, “the motion must be treated as one for
summary judgment under Rule 56,” and “[a]ll parties must be given a reasonable
opportunity to present all material that is pertinent to the motion.” FED. R. CIV. P.
12(d). However, “documents that a defendant attaches to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff’s complaint and
are central to [his] claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498
(5th Cir. 2000). Plaintiff specifically referred to the employment contract in the
Complaint [1], and it is central to his claims. Therefore, the Court may refer to it
without converting Defendants’ motions pursuant to Rule 12(d).
III. MOTION TO DISMISS [6, 9] (CHSPC & WESLEY)
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Defendants CHSPC and Wesley argue that Plaintiff was an independent
contractor, rather than their employee. “An ‘employee’ under Title VII is defined in
pertinent part as ‘an individual employed by an employer.’” Juino v. Livingston Parish
Fire Dist. No. 5, 717 F.3d 431, 434 (5th Cir. 2013) (quoting 42 U.S.C. § 2000e(f)).
“Recognizing the circularity in such a definition, the Supreme Court explained that
when Congress has used the term ‘employee’ without defining it, we have concluded
that Congress intended to describe the conventional master-servant relationship as
understood by common-law agency doctrine.” Id. (punctuation and citations omitted).
In determining whether a hired party is an employee under the general
common law of agency, we consider the hiring party’s right to control the
manner and means by which the product is accomplished. Among the
other factors relevant to this inquiry are the skill required; the source of
the instrumentalities and tools; the location of the work; the duration of
the relationship between the parties; whether the hiring party has the
right to assign additional projects to the hired party; the extent of the
hired party’s discretion over when and how long to work; the method of
payment; the hired party’s role in hiring and paying assistants; whether
the work is part of the regular business of the hiring party; whether the
hiring party is in business; the provision of employee benefits; and the tax
treatment of the hired party.
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24, 112 S. Ct. 1344, 117 L. Ed.
ed 581 (1992).
The Fifth Circuit applies a hybrid “economic realities/common law control test,
a variation of the common law agency test, in determining whether a party is an
employee or an independent contractor.” Juino, 717 F.3d at 434. “The economicrealities portion of the test asks whether putative employees, as a matter of economic
reality, are dependant upon the business to which they render service,” while the
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“common law control portion of the test . . . assesses the extent to which the one for
whom the work is being done has the right to control the details and means by which
the work is to be performed.” Id. The common law control analysis is the more
important component. Id. The following factors are relevant to the Court’s analysis:
(1) the kind of occupation, with reference to whether the work usually is
done under the direction of a supervisor or is done by a specialist without
supervision; (2) the skill required to the particular occupation; (3)
whether the “employer” or the individual in question furnishes the
equipment used and the place of work; (4) the length of time during which
the individual has worked; (5) the method of payment, whether by time
or by job; (6) the manner in which the work relationship is terminated,
i.e. by one or both parties, with or without notice and explanation; (7)
whether annual leave is afforded; (8) whether the work is an integral part
of the business of the “employer;” (9) whether the worker accumulates
retirement benefits; (10) whether the “employer” pays social security
taxes; and (11) the intention of the parties.
Diggs v. Harris Hosp.-Methodist, Inc., 847 F.2d 270, 272-73 (5th Cir. 1988).
In support of their argument that Plaintiff was an independent contractor,
Defendants wholly rely on the parties’ Service Agreement [9-1, 9-2]. As with any multifactored analysis, “determining whether an individual is an ‘employee’ for Title VII
purposes is a fact-intensive inquiry . . . .” Arbaugh v. Y& H Corp., 380 F.3d 219, 229
(5th Cir. 2004), rev’d on other grounds 546 U.S. 500, 126 S. Ct. 1235, 163 L. Ed. 2d
1097 (2006). That being the case, the Court concludes that it would be imprudent to
rely on the Service Agreement [9-1, 9-2] alone and dismiss Plaintiff’s Title VII claims
before the parties have conducted discovery and presented additional evidence relevant
to the analysis outlined above. The Court denies Defendants’ Motions to Dismiss [6, 9].
IV. MOTION TO DISMISS [18] (NEURENDOF)
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Defendant Michael Neurendof argues that Plaintiff’s Section 1981 claims
against him must be dismissed because Plaintiff failed to allege that Neurendof
personally participated in any of the alleged discriminatory/retaliatory actions.
Plaintiff alleged that Neurendof was the CEO of Wesley at all times relevant to
this case. In his EEOC charges of discrimination [1-2, 1-4],1 Plaintiff alleged that
“Neurendof used the ‘at will’ agreement as retaliation for [his] efforts to stop blatant
discrimination . . . . He would not allow me to terminate Dr. Chris Painter (white) after
informing him of Dr. Painter’s clinical weakness.” Plaintiff also alleged that Neurendof
terminated him one week after he lodged a complaint with the Chief of Medical Staff.
These allegations are sufficient to state a plausible claim of Neurendof’s personal
involvement in the alleged discriminatory and retaliatory actions of which Plaintiff
complains. Therefore, the Court denies Neurendof’s Motion to Dismiss [18].
V. CONCLUSION
For the reasons provided above, the Court denies Defendants’ Motions to
Dismiss [6, 9, 18].
SO ORDERED AND ADJUDGED this 23rd day of September, 2015.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

1

“[E]xhibits attached to the complaint . . . are part of the complaint for all
purposes.” United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370,
375 (5th Cir. 2004) (citing FED. R. CIV. P. 10(c)).
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