Scarborough v. Lifepoint Inc

Filing 32

ORDER adopting 27 Report and Recommendations, granting in part and denying in part 15 Motion to Dismiss. Defendant's motion to dismiss Plaintiffs hostile work environment claim, as pled, is GRANTED. Plaintiff has leav e to amend his complaint within 15 days if he desires to plead this claim with greater specificity. Defendant's motion to dismiss the retaliatory discharge claim based upon the public policy exception is hereby DENIED. Signed by Honorable Richard M Gergel on 12/12/11.(hhil, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Larry D. Scarborough,
Plaintiff,
vs.
Lifepoint, Inc.,
Defendant.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 2:11-438-RMG

ORDER

This matter comes before the Court on Defendant's partial motion to dismiss. This action
involves various claims arising out of Plaintiff s employment and dismissal by Defendant.
Defendant's partial motion to dismiss is based upon the contention that the amended complaint
fails to allege a valid claim for hostile work environment under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, and for wrongful termination in violation of public policy under the
South Carolina common law. I The matter was referred to the Magistrate Judge for pretrial
handling pursuant to 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C. The Magistrate Judge
recommended that the hostile work environment claim, as pled, be dismissed but Plaintiff be
given 15 days for the opportunity to amend his complaint to plead with greater specificity. The
Magistrate Judge also recommended that the wrongful termination claim for violation of public

1 Plaintiff also alleges claims for discriminatory discharge under Title VII of the Civil
Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. Defendant's partial
motion to dismiss did not address these claims.

-1­

policy be dismissed. (Dkt. No. 27). Plaintiff has filed objections to the Magistrate Judge's Report
and Recommendation and Defendant has filed a reply. (Dkt. No. 29, 30).
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
review of those portions ofthe Report to which specific objection is made, and may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the
matter to her with instructions. 28 U.S.C. § 636(b)(1).
This motion to dismiss arises under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Such a motion should not be granted unless the Plaintiff can prove no set of facts from those pled
in the complaint which would support his claim and entitle him to relief. In considering the
motion to dismiss, the Court must accept all pled facts to be true and view the complaint in a light
most favorable to the Plaintiff as the non-moving party. My/an Laboratories, Inc. v. Mataki, 7
F.3d 1130,1134 (4th Cir. 1993).
According to Plaintiffs amended complaint, he was employed by Defendant in its
business of procuring and harvesting organs and tissues for use in subsequent medical procedures.
Plaintiff alleges that in violation of the statutes and regulations of the Federal Food and Drug
Administration and company policies, he was directed to harvest organs and tissue from donors
who either had a documented infectious disease (hepatitis) or was at risk for having an infectious
disease. Complaint, ~~ 22-27. Plaintiff alleges that his termination was in retaliation for
questioning the harvesting oftissue and organs from such donors.

~~

45-58. Plaintiff further

alleges that his termination followed a legitimate medical related absence from work and that
-2­

persons of the same race as his supervisor were not disciplined for their use of medical leave.

~~

9-16. Plaintiff alleges that his termination under these circumstances constituted a hostile work
environment.
In regard to the hostile work environment claim, the Magistrate Judge noted that it
appeared to her that the claim was pled more as a discriminatory discharge claim and that
Defendant had not moved to dismiss that portion of the Title VII claim. The Magistrate Judge
then ably analyzed the controlling case law on the elements of a hostile work environment and
concluded that the amended complaint, as pled, did not state a claim for hostile work
environment. Having carefully reviewed the Report and Recommendation, the full record before
the Court and the applicable legal authorities, the Court adopts that portion of the Magistrate
Judge's Report and Recommendation dismissing the hostile work environment claim as pled.
(Dkt. No. 27 at 4-8). The Court further adopts the recommendation of the Magistrate Judge that
Plaintiff has leave to file a second amended complaint within fifteen days from the date of this
order ifhe desires to plead this particular claim with greater specificity.
Plaintiffs allegations regarding his employer's instructions to harvest tissue and organs
from donors with known infectious diseases or having risk factors for infectious diseases raise
serious issues under Federal Food and Drug Administration regulations. All donor specimens are
to be evaluated for risk factors and clinical evidence for HIV Type 1 and 2 and Hepatitis B and C.
21 C.F.R. § 1270.21. Any organization which processes potential donor tissue and organs must
have in place written procedures to address potential infectious disease issues and "[a]ny
deviation from the written procedures shall be recorded and justified." 21 C.F.R. § 1270.31.
Donors are to be screened "to assure freedom from risk factors for and clinical evidence of HIV
-3­

infection, hepatitis B and hepatitis C." 21 C.F.R. § 1270.33(b)(2).
The South Carolina Supreme Court recently addressed the scope of the public policy
exception to the at will employment doctrine in Barron v. Labor Finders ofSouth Carolina, 393
S.C. 609 (2011). The Supreme Court made it clear that while the public policy exception involves
claims that the employer required the employee to violate a criminal law, "the public policy
exception is not limited to these situations." [d. at 637. In fact, the Supreme Court stated that the
public policy exception would extend even beyond claims that the employer required employees
to violate either the criminal or civil laws.
It is clear to the Court an employer's instructions to an employee to harvest organs or

tissues of a donor known to have hepatitis or at risk for hepatitis would raise grave public policy
concerns and represent a clear violation of federal regulatory law. Under the standards set forth
by the South Carolina Supreme Court in Barron, Plaintiffs allegations contained in his complaint,
which for purposes of deciding the motion to dismiss are presumed to be true, does state a claim
under South Carolina common law. Therefore, Defendant's motion to dismiss the Plaintiffs
retaliatory discharge claim based upon the public policy exception is hereby denied.
Conclusion

Defendant's motion to dismiss Plaintiffs hostile work environment claim, as pled, is
GRANTED. Plaintiff has leave to amend his complaint within 15 days ifhe desires to plead this

-4­

claim with greater specificity. Defendant's motion to dismiss the retaliatory discharge claim
based upon the public policy exception is hereby DENIED.
AND IT IS SO ORDERED.

Richard Mark Ge

December 12,2011
Charleston, South Carolina

-5­