Simpson v. Amylin Pharmaceuticals, Inc. et al
Filing
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ORDER rejecting 8 Objections to M&R; adopting 7 Memorandum and Recommendations; granting 3 Defts' Motion to Dismiss claim for gross negligence. Signed by District Judge Martin Reidinger on 8/7/12. (ejb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv301
JESSICA SIMPSON,
Plaintiff,
vs.
AMYLIN PHARMACEUTICALS, INC.,
TODD BILLINGSLEY, DENISE
PRINDIVILLE, and CAROLINE ESPREE,
Defendants.
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ORDER
THIS MATTER is before the Court on the Defendants’ Motion to Dismiss
[Doc. 3].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of Designation
of this Court, United States Magistrate Judge Dennis L. Howell was
designated to consider the motion and to submit recommendations for its
disposition.
On April 9, 2012, the Magistrate Judge filed a Memorandum and
Recommendation in which he recommended granting the motion. [Doc. 7].
The Plaintiff timely filed objections to that recommendation. [Doc. 8; Doc. 9].
PROCEDURAL HISTORY
On November 8, 2011, the Defendants timely removed this action from
state court. [Doc. 1]. In the Amended Complaint, the Plaintiff has alleged that
she was employed by Amylin Pharmaceuticals, Inc. (Amylin) from April 2005
until her termination on February 2, 2010. [Doc. 1-3 at 2-3]. The Plaintiff has
alleged claims for a violation of Title VII, 42 U.S.C. §§2000, et. seq., based on
her gender and pregnancy; a violation of North Carolina’s Equal Employment
Protection Act (EEPA), N.C. Gen. Stat. §143-422.2; gross negligence; and
tortious interference with contract.
On November 8, 2011, the Defendants moved to dismiss the Plaintiff’s
claim for gross negligence for failure to state a claim upon which relief may be
granted. [Doc. 3]. As noted above, the Magistrate Judge has recommended
that this motion be granted and the Plaintiff has timely filed objections.
STANDARD OF REVIEW
A district court reviews specific objections to a Memorandum and
Recommendation under a de novo standard. 28 U.S.C. §636(b). "Parties
filing objections must specifically identify those findings objected to." Battle
v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir.1987),
overruled on other grounds Douglass v. United Services Auto. Ass’n, 79 F.3d
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1415 (5 th Cir. 1996). If a party makes only general objections, de novo review
is not required.
Wells v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir.
1997)(boilerplate objections will not avoid the consequences of failing to
object altogether).
“Section 636(b)(1) does not countenance a form of
generalized objection to cover all issues addressed by the magistrate judge;
it contemplates that a party’s objection to a magistrate judge’s report be
specific and particularized, as the statute directs the district court to review
only those portions of the report or specified proposed findings or
recommendations to which objection is made.” United States v. Midgette, 478
F.3d 616, 621 (4 th Cir.), cert. denied 551 U.S. 1157, 127 S.Ct. 3032, 168
L.Ed.2d 749 (2007) (emphasis in original). Likewise, merely reiterating the
same arguments made in the pleading submitted to the Magistrate Judge
does not warrant de novo review. Id.; Veney v. Astrue, 539 F.Supp.2d 841,
846 (W.D.Va. 2008). “Allowing a litigant to obtain de novo review of her entire
case by merely reformatting an earlier brief as an objection ‘mak[es] the initial
reference to the magistrate useless.’” Id. In 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.” Midgette, 478 F.3d
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at 622.
The Plaintiff has not objected to the Magistrate Judge’s statement of the
standard of review to be applied to motions to dismiss for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. 9]. Having
reviewed the standard as stated, the Court finds it is legally accurate and
adopts it.
FACTUAL ALLEGATIONS OF THE COMPLAINT
The motion to dismiss is limited to the claim for gross negligence.
Plaintiff
alleges
that
Defendant
Amylin
develops
and
markets
pharmaceuticals, and that Plaintiff worked as a representative of the company
making sales calls on physicians’ practices. She alleges that until announcing
her pregnancy and intention to take maternity leave, she had been given
consistently satisfactory performance evaluations. [Doc. 1-3 at 2-3].
On
January 10, 2010, Todd Billingsley (Billingsley), who was the district sales
manager and Plaintiff’s immediate supervisor, instructed the employees in the
Asheville division of Amylin that they should use their best judgment to decide
whether to travel during inclement weather. [Id. at 3]. On January 12, 2010,
the Plaintiff determined not to make a planned sales call to a practice in
Morganton due to snow and instead worked at home after meeting with a local
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physicians’ practice. [Id. at 3-4]. The next day, she informed Billingsley during
a breakfast meeting of her pregnancy, her planned cesarean section birth and
her planned maternity leave. [Id.]. On January 14, 2010, the Plaintiff received
a report from Billingsley which was, for the first time in her work history, critical
of her performance. [Id.].
On January 28, 2010, the Plaintiff met with Billingsley and Denise
Prindiville (Prindiville), Amylin’s regional manager. At the beginning of the
meeting, the Plaintiff informed Prindiville of her pregnancy, the planned
caesarian birth and her scheduled maternity leave. [Id. at 5]. During the rest
of the meeting, Billingsley and Prindiville questioned the Plaintiff about her
actions during the week of January 10, 2010 and placed her on paid
administrative leave. [Id.].
The next day the Plaintiff had a conference call with Billingsley,
Prindiville and Carolina Espree (Espree), Amylin’s human resources manager.
[Id.]. Prindiville told the Plaintiff that she was being terminated for submitting
false records of sales calls on January 12 and 14, 2010, and failing to work full
days on those occasions. [Id.]. The Plaintiff denied the accusations and
requested an opportunity to submit documentation confirming that these
claims were untrue. [Id.]. Espree rescinded the termination and allowed the
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Plaintiff to make such submissions. [Id.]. On that same day, the Plaintiff
provided the documentation regarding those sales calls to Espree. [Id.].
The Plaintiff alleges that the Defendants rejected the information she
provided without making an independent investigation, such as calling the
physicians whom she visited. [Id.]. On February 2, 2010, she was terminated
during a conference call with Billingsley, Prindiville and Espree. [Id.]. She
later received a letter confirming the termination. [Id.].
The Plaintiff alleges that Billingsley has discriminated against two other
female employees of Amylin based on their taking medical and maternity
leave. [Id. at 6].
In the Complaint, it is alleged that the Defendants owed a duty to the
Plaintiff to refrain from taking adverse employment actions based on her
gender and pregnancy. [Id. at 9]. They are alleged to have “willfully, wantonly,
and/or recklessly breached” that duty by (1) failing to investigate her
explanations surrounding the accusations against her; (2) issuing a
performance report which contained false and inaccurate accusations; and (3)
making false accusations concerning her job performance on January 12 and
14, 2010.
[Id.].
It is alleged that this conduct occurred because of the
Defendants’ desire to terminate her based on her gender and pregnancy.
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[Id.].
Amylin is alleged to have “condoned and/or ratified the negligent
conduct of” Billingsley, Prindiville and Espree. [Id.]. The Plaintiff’s termination
was allegedly the proximate result of such conduct. [Id.].
DISCUSSION
The Plaintiff does not object to the Magistrate Judge’s statement of the
elements of a gross negligence claim: (1) the defendant owed a duty to the
plaintiff; (2) the defendant breached that duty; (3) the breach was a proximate
cause of the injury; (4) the plaintiff was injured as a result thereof and (5) the
defendant’s conduct was willful, wanton, or done with reckless indifference.
Sawyer v. Food Lion, Inc., 144 N.C.App. 398, 549 S.E.2d 867 (2001).
Willful conduct is done with a deliberate purpose. Conduct is
willful when it is carried out with a wicked purpose or with reckless
indifference. Thus, gross negligence encompasses conduct which
lies somewhere between ordinary negligence and intentional
conduct.
Id. at 870 (internal quotations and citations omitted).
The issue that is dispositive of Plaintiff’s objections is addressed in
Plaintiff’s third objection to the Memorandum and Recommendation. The
Magistrate Judge concluded that “the gross negligence claim Plaintiff asserts
in this case is based on the same conduct that gives rise to her Title VII claim
and is subject to dismissal because a plaintiff may not maintain a negligence
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claim based on a defendant’s alleged failure to comply with the dictates of
Title VII,” citing Crosten v. Kamauf, 932 F. Supp. 676, 684 (D. Md.1996);
Mwabira-Simera v. Thompson Hospitality Services, LLP, 2012 WL 959383
(D.Md. 2012); and Brown v. Children’s Nat. Medical Center, 773 F.Supp.2d
125, 138-39 (D.D.C. 2011). [Doc. 7 at 8-9]. See also, Samuels v. Two Farms,
Inc., 2012 WL 261196 (D.Md. 2012) (citing Perry v. FTData, Inc., 198
F.Supp.2d 699 (D.Md. 2002)); Wade v. Washington Metropolitan Area Transit
Authority, 2005 WL 1513137 **6 (D.D.C. 2005) (“The precisely drawn,
detailed Title VII preempts the more general common law negligence
remedy.”) (citation omitted). “When, as here, the victim of a discriminatory act
[does not] allege[ ] a harm apart from discrimination, Title VII ... preclude[s]
her from suing under a common law tort theory to remedy that [same] injury.”
Boyd v. O’Neill, 273 F.Supp.2d 92, 96 (D.D.C. 2003); Stewart v. Thomas, 538
F.Supp. 891, 896 (D.D.C. 1982).
Plaintiff objects to this proposed conclusion on the basis that the
Magistrate Judge “fails to cite any case from the North Carolina state or
federal courts for this proposition.” [Doc. 8 at 3]. Whether Title VII preempts
common law tort claims would be a matter of federal law. Plaintiff does not
give any reason why decisions of the North Carolina state courts would have
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any bearing on this matter. Moreover, Plaintiff fails to cite any federal court
decisions contrary to the many on this point cited by the Magistrate Judge and
cited above. Interestingly, the one case that the Plaintiff does cite, Lissau v.
Southern Food Service, Inc., 159 F.3d 177, 180-81 (4 th Cir. 1998), undercuts
Plaintiff’s point rather than support it.
In support of the objection, the Plaintiff cites Guthrie v. Conroy, 152 N.C.
App. 15, 567 S.E.2d 403 (2002), in which, she argues, the North Carolina
Court of Appeals held that a tort claim is not duplicative of a Title VII claim.
The plaintiff in Guthrie, however, did not allege a claim pursuant to either Title
VII or the EEPA.
Her claims were intentional and negligent infliction of
emotional distress, negligent retention and supervision, and assault. In
concluding that the plaintiff’s tort claims survived, the Court noted that she had
not brought a Title VII claim and thus had no need to administratively exhaust
remedies prior to suing in tort. Id. The Court also stated that the “elements
and legal prerequisites of her claims are quite different from those of a Title
VII claim.” Id. Plaintiff’s reliance on Guthrie is strained at best. For these
reasons, this objection of the Plaintiff is overruled.
The legal conclusion concerning the availability of common law tort
claims based on the same conduct alleged to violate Title VII would appear
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to dispose of all of Plaintiff’s objections. Nonetheless, the Plaintiff’s other two
objections will be addressed.
Plaintiff objects to the Magistrate Judge’s proposed conclusion “that a
gross negligence claim may not be based upon the statutory and common-law
[sic] duty not to engage in gender/pregnancy discrimination.” [Doc. 8 at 2].
Plaintiff argues this is inconsistent with the decision in Toomer v. Garrett, 155
N.C. App. 462, 574 S.E.2d 76 (2002), disc. rev. denied 357 N.C. 66, 579
S.E.2d 576 (2003). That case, however, is inapposite. In Toomer, a state
employee brought an action based on violations of state and federal
constitutional rights, 42 U.S.C. §1983 and in gross negligence because the
defendant disclosed and disseminated the contents of his state personnel file,
in violation of a state statute. There was no Title VII claim, in fact no claim
based on discrimination of any kind. Based on this, the Plaintiff here makes
the substantial logical leap to assert that a gross negligence claim may be
predicated on a violation of any statutory duty, including the statutory mandate
not to discriminate based on gender. Plaintiff, however, cites no authority
from any jurisdiction to support this assertion. Plaintiff chooses to simply
ignore the apparently unanimous case law that a violation of Title VII cannot
serve as a basis for a negligence (or gross negligence) claim.
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Moreover, discrimination alone does not rise to the level of gross
negligence.
Alexander v. City of Greensboro, 762 F.Supp.2d 764, 824
(M.D.N.C. 2011); Hammond v. Taneytown Volunteer Fire Co., 2009 WL
3347327 (D.Md. 2009) (allegation that employer failed to protect employee
from discriminatory conduct by others failed to state claim for gross
negligence). Plaintiff alleges that the Defendants made various omissions in
order to terminate her based on an improper discriminatory motive. No other
duty is alleged to have been breached. For these reasons this objections
must also be overruled.
Lastly, Plaintiff objects to the Magistrate Judge’s proposed conclusion
that Plaintiff’s claim cannot sound in negligence because she has alleged
intentional discriminatory conduct.
For this objection Plaintiff relies on
Bumgardner v. Spotless Enterprises, Inc., 287 F.Supp.2d 630 (W.D.N.C.
2003). In that case, however, the plaintiff did not assert a claim based on
gross negligence, but rather one for negligent infliction of emotional distress.
In citing the case to support her position, the Plaintiff isolates one quote:
“Wrongful termination is not necessarily always intentional.” Id. at 638. From
this the Plaintiff extrapolates that one may state a claim for wrongful
termination based on negligence. The Court in Bumgardner, however, stated
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that “based on the inconsistencies in some of the testimony regarding the
reasons for terminating Bumgardner, it may well be that the supervisors
negligently relied on improper information in deciding to discharge him.” Id.
There is no such allegation in this case. Plaintiff alleges that the individual
Defendants had the intention of terminating Plaintiff’s employment because
of her sex and her pregnancy. The Plaintiff’s reliance on Bumgardner is even
more tenuous because the plaintiff in that case did not allege a claim for gross
negligence. For these reasons this objection is overruled as well.
Having conducted a de novo review, the Plaintiff’s Objections to the
Magistrate Judge’s Memorandum and Recommendation are hereby rejected
and the Recommendation is hereby adopted.
ORDER
IT IS, THEREFORE, ORDERED that the Defendants’ Motion to Dismiss
[Doc. 3] is hereby GRANTED and the Plaintiff’s claim based on gross
negligence is hereby DISMISSED.
Signed: August 7, 2012
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