Black v. Mission Hospital, Inc.
Filing
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MEMORANDUM OF DECISION AND ORDER granting 4 Partial Motion to Dismiss, and claim for retaliation under ADA as set forth in Second Cause of Action in Complaint is DISMISSED WITHOUT PREJUDICE; overruling 13 Objection to Ma gistrate Judge's Decision, and adopting 12 Memorandum and Recommendations; parties to conduct an Initial Attys' Conference (IAC) within 14 days & file a Certificate of IAC within 7 days thereafter. Signed by District Judge Martin Reidinger on 1/12/12. (ejb)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv146
BRIAN K. BLACK,
Plaintiff,
vs.
MISSION HOSPITAL, INC., a North
Carolina Corporation,
Defendant.
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MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on the Defendant’s Partial Motion to
Dismiss [Doc. 4]; the Magistrate Judge’s Memorandum and Recommendation
regarding the disposition of such Motion [Doc. 12]; and the Plaintiff’s Objection
to the Memorandum and Recommendation [Doc. 13].
I.
PROCEDURAL BACKGROUND
The Plaintiff Brian K. Black brings this action against the Defendant
Mission Hospital, Inc., alleging two separate causes of action under the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq.
In his First Cause of Action, the Plaintiff alleges that the Defendant unlawfully
discriminated against him when it withdrew an offer of employment previously
extended to him for the position of Technical Software Engineer Associate
because of his limited color vision acuity. [Doc. 1 at ¶¶33-43]. In his Second
Cause of Action, the Plaintiff alleges that the Defendant retaliated against him
by withdrawing the offer of employment after he requested a reasonable
accommodation for his disability. [Id. at ¶¶44-49]. On July 14, 2011, the
Defendant moved to dismiss Plaintiff’s Second Cause of Action, on the
grounds that such claim is outside the scope of the Charge of Discrimination
the Plaintiff filed with the EEOC. [Doc. 4].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of Designation
of this Court, the Honorable Dennis L. Howell, United States Magistrate
Judge, was designated to consider the Defendant’s Motion and to submit a
recommendation regarding its disposition.
On November 8, 2011, the
Magistrate Judge entered a Memorandum and Recommendation in which he
recommended that the Defendant’s Motion be granted. [Doc. 12]. In so
doing, the Magistrate Judge reasoned as follows:
The Notice of Charge of Discrimination submitted by
Plaintiff to the EEOC list[s] only disability and genetic
information as the circumstances of discrimination.
Plaintiff did not check the retaliation box. Moreover,
the Charge of Employment Discrimination makes no
mention of retaliation and does not set forth any facts
supporting such a claim. The Charge of Employment
Discrimination only references a discrimination claim,
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stating that Mission Hospitals rescinded Plaintiff’s
employment offer due to his disability. Finally, the fact
that one of Mission Hospital’s employees stated
during an interview with an EEOC investigator that
Plaintiff asked if it would be possible to customize the
computer system that Mission Hospital uses is
insufficient to find that Plaintiff’s claim of retaliation
was contained in his charge of discrimination with the
EEOC. Because a claim of retaliation was not set
forth in the administrative charge, Plaintiff is
procedurally barred from asserting such a claim in this
Court.
[Doc. 12 at 4-5 (citations and quotation marks omitted)].
The Plaintiff timely filed objections to the Magistrate Judge’s
Recommendation, arguing that his retaliation claim was “within the scope” of
his EEOC charge and therefore should not be dismissed. [Doc. 13]. The
Defendants have responded, arguing that the Court should adopt the
Recommendation in its entirety. [Doc. 14].
Having been fully briefed, this matter is ripe for review.
II.
STANDARD OF REVIEW
A.
Standard of Review Applicable to Objections to Magistrate
Judge’s Proposed Findings and Recommendation
The Federal Magistrate Act requires a district court to “make a de novo
determination of those portions of the report or specific proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). In
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order “to preserve for appeal an issue in a magistrate judge’s report, a party
must object to the finding or recommendation on that issue with sufficient
specificity so as reasonably to alert the district court of the true ground for the
objection.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). The
Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge to which no objections
have been raised. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88
L.Ed.2d 435 (1985). Additionally, the Court need not conduct a de novo
review where a party makes only “general and conclusory objections that do
not direct the court to a specific error in the magistrate's proposed findings
and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
B.
Rule 12(b)(1) Standard
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, “[t]he
plaintiff has the burden of proving that subject matter jurisdiction exists.”
Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). “When a
defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1),
‘the district court is to regard the pleadings as mere evidence on the issue and
may consider evidence outside the pleadings, without converting the proceed
to one for summary judgment.’” Id. (quoting Richmond, Fredericksburg &
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Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). The
Court should grant the motion to dismiss “only if the material jurisdictional
facts are not in dispute and the moving party is entitled to prevail as a matter
of law.”
Evans, 166 F.3d at 647 (quoting Richmond, Fredericksburg &
Potomac R. Co., 945 F.2d at 768).
III.
FACTUAL BACKGROUND
The Magistrate Judge summarized the relevant facts as alleged in the
Complaint as follows:
Plaintiff has limited color vision acuity and alleges that
he is disabled within the meaning of the ADA. (Pl.’s
Compl. ¶ 13.) In 2009, he submitted an application for
employment with Mission Hospital as a Technical
Software Engineer Associate. (Id. ¶ 10.)
On
December 18, 2009, Mission Hospital interviewed
Plaintiff for the position. (Id. ¶ 11.) After the interview,
Mission Hospital offered Plaintiff the job. (Id. ¶ 14.)
Plaintiff received a letter from the Human Resources
Department confirming the job offer. (Id. ¶ 15.)
Plaintiff accepted the offer of employment. (Id. ¶ 17.)
Approximately a week prior to Plaintiff’s scheduled
start date, Plaintiff underwent a staff health
assessment, which included a test for color blindness.
(Id. ¶ 18.) The test indicated that Plaintiff had limited
color acuity. (Id. ¶¶ 18-19.) Plaintiff then met with an
employee of Mission Hospital to discuss his color
blindness. (Id. ¶¶ 20-22.) At this meeting, Plaintiff
alleges that he requested that Mission Hospital
provide him with a reasonable accommodation with
respect to his color blindness. (Id. ¶ 24.) Plaintiff
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further alleges that a representative of Mission
Hospital stated at this meeting that it would be difficult
or cost-prohibitive to adjust the color icons used by
Mission Hospital’s computer programs in order to
accommodate Plaintiff. (Id. ¶¶ 23, 25.) Several days
later a representative of Mission Hospital called
Plaintiff and told him that they were revoking his offer
of employment due to his color blindness. (Id. ¶ 26.)
Mission Hospital then sent Plaintiff a letter stating that
the prior offer of employment was rescinded due to
Plaintiff’s limited color vision acuity. (Id. ¶ 29.)
After Mission Hospital rescinded his offer of
employment, Plaintiff filed a charge of discrimination
with the Equal Employment Opportunity Commission
(“EEOC”) alleging discrimination in violation of the
ADA. On March 18, 2011, the EEOC issued Plaintiff
a right to sue letter. Plaintiff then brought this action,
and Defendant moved to dismiss Plaintiff’s claim of
retaliation. Defendant’s motion is now properly before
this Court.
[Doc. 12 at 1-3].
The Plaintiff makes only one specific objection to the Magistrate Judge’s
summary of the relevant facts, challenging the finding that the Plaintiff alleged
“that a representative of Mission Hospital stated at this meeting that it would
be difficult or cost-prohibitive to adjust the color icons used by Mission
Hospital’s computer programs in order to accommodate Plaintiff.” [Doc. 12 at
2]. As the Plaintiff correctly points out, the Complaint alleges that a Mission
Hospital representative stated that “it would not be difficult or cost-prohibitive”
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to make such adjustments to the computer programs. [See Doc. 1 at ¶25
(emphasis added)]. Thus, this particular finding by the Magistrate Judge,
which was most likely the result of a clerical mistake, was in error. In all other
respects, the Court finds that the Magistrate Judge’s recitation of the relevant
facts is correct. Accordingly, with the exception of the one factual finding cited
above, the factual background as set forth in the Memorandum and
Recommendation [Doc. 12 at 1-3] is accepted and incorporated herein.
IV.
DISCUSSION
In order for this Court to have subject matter jurisdiction over the
Plaintiff’s ADA claims, the Plaintiff must have first exhausted his administrative
remedies with the Equal Employment Opportunity Commission.
See 42
U.S.C. § 12117(a); Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir.
2005). The scope of the Plaintiff’s right to file a federal suit is limited by the
contents of his EEOC charge. Jones v. Calvert Group, Ltd., 551 F.3d 297,
300 (4th Cir. 2009) (discussing Title VII); Chacko, 429 F.3d at 506 (“This
charge frames the scope of future litigation.”). “Only those discrimination
claims stated in the initial charge, those reasonably related to the original
complaint, and those developed by reasonable investigation of the original
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complaint may be maintained in a subsequent . . . lawsuit.” Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).
In the present case, the Plaintiff concedes that the Notice of Charge of
Discrimination and the EEOC Charge identify only claims of discrimination
based on disability and genetic information.1 [See Doc. 10-1 at 11, 13].
Indeed, nothing in the statements in the EEOC Charge or the supporting
documents refers to “retaliation” in any form.
The Plaintiff nevertheless
contends that his retaliation claim is “reasonably related” such that this claim
would have been “developed by reasonable investigation” of the claims of
discrimination set forth in his Charge. Contrary to the Plaintiff’s contentions,
however, the Plaintiff’s Charge does not remotely allege that the Defendant
retaliated
against
him
because
he
had
requested
a
reasonable
accommodation. “Where the EEOC charge alleges discrimination but not
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Significantly, the retaliation box was not checked on either of these forms to
indicate this as a basis for the Plaintiff’s complaints. The Plaintiff argues that these
documents were completed by EEOC personnel, and thus it was improper for the
Magistrate Judge to find that “Plaintiff did not check the retaliation box” in filing his
Charge. [Doc. 12 at 4]. Regardless of whether EEOC personnel or the Plaintiff
completed these documents, however, the fact remains that the retaliation box was not
checked, either on the Notice or the EEOC Charge. Plaintiff was represented by
counsel throughout these administrative proceedings, so if in fact the Plaintiff had
intended to check the retaliation box to include it as a basis for his charge of
discrimination, he could have easily requested amendment of these documents. For
whatever reason, however, he failed to do so. In light of these circumstances, the
Magistrate Judge did not err in finding that the failure to check the retaliation box on the
EEOC forms should be attributed to the Plaintiff.
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retaliation, the reasonable scope of the agency’s investigation cannot be
expected to encompass allegations of retaliatory motive.” Shepheard v. City
of New York, 577 F.Supp.2d 669, 680 (S.D.N.Y. 2008), aff’d, 360 F. App’x 249
(2d Cir. 2010); Sussle v. Sirina Protection Sys. Corp., 269 F.Supp.2d 285, 314
(S.D.N.Y. 2003). Significantly, the facts alleged by the Plaintiff in support of
his discrimination claim are exactly the same as those alleged in support of
his retaliation claim.
The Plaintiff therefore clearly could have alleged
retaliation when his counsel filed the Charge because all the facts to support
that claim existed at the time of filing. The Plaintiff cannot now argue that the
scope of the EEOC investigation could have included retaliation when he had
the opportunity to allege that claim specifically but failed to do so. “The
‘reasonably related’ doctrine does not excuse a plaintiff’s failure to include
allegations in his administrative complaint where those allegations pertained
to conduct that had occurred before the administrative complaint was filed.”
Sussle, 269 F.Supp.2d at 315 (dismissing ADA retaliation claim where it was
not asserted in charge alleging failure to make a reasonable accommodation).
For these reasons, the Court concludes that the Plaintiff’s retaliation
claim is not reasonably related to his charge such that it would have been
expected to follow from an investigation of his disability and genetic
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information discrimination claims. See Miles v. Dell, 429 F.3d 480, 492 (4th
Cir. 2005) (finding plaintiff’s retaliation claim was “not reasonably related” to
her claims of sex and pregnancy discrimination claims where charge
contained no allegations regarding retaliation for complaints of discrimination).
The Plaintiff’s Objections to the Memorandum and Recommendation are
therefore overruled.
V.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Objection to the
Memorandum and Recommendation [Doc. 13] is OVERRULED, and the
Magistrate Judge’s Memorandum and Recommendation [Doc. 12]
is
ACCEPTED.
IT IS FURTHER ORDERED that the Defendant’s Partial Motion to
Dismiss [Doc. 4] is GRANTED, and the claim for retaliation under the ADA as
set forth in the Second Cause of Action in the Plaintiff’s Complaint is hereby
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the parties shall conduct an Initial
Attorneys’ Conference within fourteen (14) days of this Order and file a
Certificate of Initial Attorneys’ Conference with the Court within seven (7) days
thereafter.
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IT IS SO ORDERED.
Signed: January 12, 2012
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