Blaise v. Harris

Filing 21

MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 08/10/2016. Copy mailed to Plaintiff. (walk, )

~

~

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

~

IL

AUG I I 20l6

CLERK, U.S. DISTRICT COURT

DIE K. BLAISE,

RICHMOND VA

Plaintiff,

v.

Civil Action No. 3:16CV0023

SANDRA HARRIS, and
VIBRA HOSPITAL OF RICHMOND, LLC
Defendants.

MEMORANDUM OPINION

This matter

is before

(Docket

DISMISS

No.

the

10} .

Court on

For

the

Defendants'

reasons

Defendants' MOTION TO DISMISS will be granted.

MOTION TO

stated

below,

(Docket No. 10}.

BACKGROUND

The Complaint
pharmacist

at

beginning

on May

Vibra
states

replaced
that

all

states

Vibra
20,

that

Die

Hospital

of

2013.

(Comp!.

pharmacy

entry

pharmacists

other

its

Blaise

K.

("Blaise"}

Richmond,
1).

On

system.
than

September

himself

a

( "Vibra"}

LLC

(Compl.

was

1,

2).

2013,
Blaise

were

trained

extensively in the new system, and that, as a result of Blaise's
abbreviated training,
medication

~

orders"

"it took a little(]
using

the

training program notwithstanding,

new

longer to process some

system.

3).

"[m)edication errors

system wide issue" after the system switch.
the transition to the new system,

(Compl.

(Comp!.

The

[were]

3} .

a

During

the Director of Pharmacy,

Dr.

Sandra

Harris

("Harris")

began

to

schedule

other

pharmacists

more frequently and to schedule Blaise less frequently.

(Compl.

3) •

On

December

18,

2013,

for "medication errors."

employment

was

terminated

(Compl. 1-2) . Blaise states that these

"medication

errors"

were

[Blaise's]

position

as

discrimination case"

Blaise' s

fabricated
a

by

Harris

pharmacist"

( Compl. 2),

and

to

"terminate

"to

dilute

a

and that any medication errors

that did occur also occurred for other pharmacists who were not
fired.

(Compl. 2-3).

At an unspecified point,
Virginia
Vi bra.

(Compl.

Harris's
states

Board

of

Pharmacy

2) .

complaint

that

he

while at Vibra.

The
on

was

Harris filed a complaint with the
based

Board

of

February

never

on

Pharmacy

27,

accused

Blaise's

2015.
of

performance

notified
(Compl.

patient

Blaise
2).

safety

at
of

Blaise
concerns

(Compl. 2) .

On August 4,

2015,

Blaise filed a charge of discrimination

with the EEOC. The Complaint states that the EEOC issued a Right
to Sue notice on December 28, 2015.
On January 12,
Forma

Pauperis

and

2016,
a

(Compl. 2) . 1

Blaise filed a Motion to Proceed In

proposed

Complaint.

1

(Docket

No.

1).

On

That document, filed with the Complaint as Appendix B, states
that the EEOC complaint was not timely filed. (Docket No. 5, Ex.

B, 2) •

2

March 17, 2016,

Blaise paid the civil filing fee

(Docket No.

4)

and filed his Complaint (Docket No. 5).
The
"Race,

Complaint

Color,

and

alleges
National

four

claims,

Origin,"

titled

"Harassments,"

"Disability,"

Hospital of Richmond Violates its own policy." (Comp!.
Harris

and

Vibra

(collectively

motion to dismiss under Fed. R. Civ.
on several grounds,

"Defendants")
P. 12 (b) (6)

Mem.

not

~

"Vibra

3-4).

filed

this

(Docket No. 10)

including that all claims are time-barred,

that Blaise has not pled membership in a
that Harris is

and

liable

protected class,

in her individual capacity.

in Supp. of Def.'s Mtn. to Dismiss, Docket No. 11}

and

(Def.' s
("Def.'s

Mem. ") .

LEGAL STANDARD
A.

Pro Se Litigants Are Entitled to Liberal Construction
As a

threshold matter,

the Court recognizes that Blaise' s

pro se status entitles his pleadings to a liberal construction.
See, e.g., Erickson v.
omitted); Gordon v.
Nevertheless,

l?ardus, 551 U.S. 89,

Leeke,

574 F.2d 1147,

94
1151

(2007)

(citations

(4th Cir.

1978).

"[e]ven pro se plaintiffs must recognize Rule B's

vision for 'a system of simplified pleadings that give notice of
the general claim asserted, allow for the preparation of a basic
defense,

narrow the issues to be litigated,

and provide a means

for quick dispositions of sham claims." Sewraz v. Guice, 2008 WL
3

3926443,

at

Berzak,

*2

(E.D.

Va.

Aug.

151

(S.D.N.Y.

57 F.R.D. 149,

liberal construction

26,

2008)

(quoting

Prezzi

v.

1972)). The requirement of

'does not mean that the court can ignore a

clear failure in the pleading to allege facts which set forth a
claim cognizable in a

federal district court.

2009 WL 2191981, at *2

(D.S.C. July 16, 2009)

Dept.

of Soc.

Servs.,

901

F.2d 387

the basic pleading standards
550 U.S.

544

(2007)

Skelton v.

EPA,

(citing Weller v.

(4th Cir.

1990)).

Finally,

set by Bell Atlantic v.

Twombly,

and Ashcroft v.

Iqbal,

556 U.S.

662

(2009)

that foreclose conclusory, factually unsupported claims apply to
pro se litigants.
B.

Fed. R. Civ. P. 12(b) (6)

A

motion

challenges

to

the

dismiss

legal

under

sufficiency

Alternative Resources Corp.,
Fed.

R.

Civ.

P.

8{a) (2)

458

Fed.
of

R.
a

P.

complaint.

F.3d 332,

"requires

Civ.

only

338
a

12(b) (6)
Jordan

v.

(4th Cir.2006).
short

and

plain

statement of the claim showing that the pleader is entitled to
relief,

in order to give the defendant fair notice of what the

claim is
Evans v.

and the

grounds upon which

Maryland Dep' t

of Transp.,

F.3d 582, 585 (4th Cir. 2015)

must

"draw

all

780

(citing Twombly, 550 U.S. at 555).

reasonable

plaintiff." Nemet Chevrolet,

rests." McCleary-

State Highway Admin.,

When deciding a motion to dismiss
court

it

Ltd.
4

under Rule

inferences
v.

in

12 (b) ( 6) ,

favor

of

Consumeraffairs.com,

a

the
Inc.,

591 F.3d 250, 253 (4th Cir. 2009). However, while the court must
"will

accept

the

''any conclusions

pleader's

description

of what

happened"

and

that can be reasonably drawn therefrom," the

court "need not accept conclusory allegations encompassing the
legal effects of the pleaded facts," Charles A. Wright & Arthur
R. Miller,

Federal Practice and Procedure §

Chamblee v. Old Dominion Sec.
WL 1415095,
accept

(E. D.

Va.

true

as

*4

a

legal

allegations.
made

clear

Iqbal,
that

Co.,

2014) .

L.L.C.,

conclusion

analytical

No.

( 3d ed. 19 9 8 ) ;

3:13CV820,

2014

Nor is the court required to

556 U.S. at 678-79.

the

13 5 7

unsupported

by

factual

"Twombly and Iqbal also

approach

for

evaluating

Rule

12(b) (6) motions to dismiss requires courts to reject conclusory
allegations

that

amount

to

mere

formulaic

recitation

of

the

elements of a claim and to conduct a context-specific analysis
to

determine

whether

the

well-pleaded

factual

allegations

plausibly suggest an entitlement to relief." Wright & Miller,
supra; Chamblee, supra.
.ANALYSIS
A.

Harassment

The

first

count,

labeled

"Harassment,"

alleges

Blaise's supervisor, Harris,
made my work environment so uncomfortable
and hostile that [I] was prone to mistake.
Harassments include offensive remarks and
frequent phone calls in respect to overtime
. . . Harris regularly
asked me to leave
5

that

at the end of my shift regardless of the
workload to be completed. This cause ( d] me
to rush to complete the daily tasks and
result[ed]
in
unsafe
patient
care
[Harris] never treated the other pharmacist
Mr. Robert Swendrznski the same way as she
[treated] me.
3).

(Comp!.
Blaise's
claim

As

Defendants

Complaint
for

note,

indicates

harassment

a

that

or

liberal
he

is

interpretation

stating

discrimination,

discrimination claim under§ 42 U.S.C. 1981.

a

or

Title

a

of

VII

racial

(Def.'s Mem. 1-2).

1. Title VII Harassment

Any

Title

plaintiff
Virginia,

to

VII

pursue

claim
a

is

Title

time-barred.
VII

claim

in

In

order

federal

for

court

a
in

a charge must be filed with the EEOC within 300 days

of the date on which the "alleged unlawful employment practice
occurred.n See 42 U.S.C. § 2000e-5(e) (l); Tinsley v. First Union
Nat'l

Bank,

155

F.3d

435,

440

{4th

Cir.

1998).

Blaise

was

terminated on December 18, 2013, and did not file with the EEOC
until August 4, 2015.
limit.

(Compl. 1-2), well beyond the 300 day time

(See also Docket No.

5,

Ex.

that complaint with agency was

B,

2)

(EEOC letter stating

filed too late) . To the extent

that Blaise seeks to present a Title VI I harassment claim,

his

claim is time-barred.
Blaise acknowledges that his EEOC filing fell outside the
300 day period,
tolled for

but argues that the statute of limitations was

his Title VII

harassment claim.
6

The

Fourth Circuit

has

held

that

"employee's

equitable

failure

to

tolling

timely

is

permissible

file

results

from

when

the

either

a

'deliberate design by the employer or actions that the employer
should unmistakably have understood would cause the employee to
delay filing his charge."' Olson v.
198,

201

{4th

Cir.

Business Systems,

1990)

Inc. ,

Mobil Oil Corp.,

(quoting

694

in

F. 2d 963,

part

965

Price

904
v.

291 F.3d 276,

Cir.

of

(stating

tolled "'where the

that

the

statute

complainant has

Litton

(4th Cir. 1982) } .

also Chao v. Virginia Dep't of Transp.,
2002)

F. 2d

limitations

283

See
{4th

may

be

been induced or tricked by

his adversary 1 s misconduct into allowing the filing deadline to
pass.'"}

{quoting Irwin v.

U.S.

89,

96

does

not

excuse employees

(1990)).

Department of Ver.erans Affairs,

Nevertheless,

4 98

even an employer's duplicity

from the obligation

to pursue

their

rights to the extent that doing so remains reasonably possible.
See Chao, 291 F.3d at 283 (''Equitable tolling is not appropriate
'where

the

claimant

failed

preserving his legal rights.'")
at 96,

111 S.Ct.

to

exercise

due

diligence

in

{quoting in part Irwin, 4 98 U.S.

453); Kokotis v. United States Postal Service,

223 F.3d 275, 280 {4th Cir. 2000).
In this case,

there

is no allegation of duplicity by the

Defendants. Blaise states that his claim for harassment based on
Harris's
scheduling,

"offensive

remarks,"

and reprimands

(Compl.
7

"frequent
3) ,

phone

calls,"

conduct of which Blaise

was

necessarily

aware,

and

which

he

could

and

should

have

reported to the EEOC within 300 days.
Blaise is not entitled to equitable tolling.

Therefore,

to

the extent that Blaise's Complaint intends to assert a claim for
Title VII harassment, it will be dismissed with prejudice.
2. § 1981
To

state

a

prima

facie

case

for

created a

hostile work environment

plaintiff

must

state

facts

so

as

alter

the

abusive atmosphere,
to

employer.

the

F.3d

U.S.C.

that:

the

and

( 4)

of

1981,

§

(1)

which
a

plaintiff

harassment was

employment

there is a

and

thus

Airtran Airways,

765

claim);

368 F. 3d 371,

(4th

Cir.

531 F.

based

and

for

create

imputing the

liability

Supp.

an

on

2d 660,

the

668-69

see

also

376

DuPont de Nemours

&

for

2003)

James

basis

imposing

(relying on Bass v. E.I.

761,

harassment
Inc.,

(2)

conditions

employer

Reed v.

(D. Md. 2008)
324

42

harassment

{3) the harassment was sufficiently severe or pervasive

to

conduct

under

establishing

experienced unwelcome harassment;
on race;

racial

racial

v.

(4th Cir. 2004)

elements

Booz-Allen

of

Co.,

& Hamilton,

{noting that plaintiffs

must satisfy the same elements to establish a claim for racial
discrimination under either Title VII or § 1981).
A plaintiff may establish the second element of harassment
based

on

evidence

race
of

either:

intentional

(1)

through

the

discrimination
8

"direct"
such

as

method,

with

discriminatory

statements; or

(2}

membership

in

a

treatment

from

protected

class.

through the "prima facie" method of pleading
protected

class

similarly
~,

and

also

situated

Hinton

v.

pleading

employees

Virginia

different

outside

Union

the

Univ.,

No.

3:15CV569, 2016 WL 2621967, at *5-6 (E.D. Va. May 5, 2016}.
Blaise
harassment

fails

to

claim.

element of a §

state

First,

the

second

Blaise

element

fails

to

of

state

a
the

§

1981
second

1981 harassment claim because his Complaint is

absolutely devoid of any mention of his race or of the race of
differently-treated co-workers.
motion

to

dismiss,

included his race

Blaise

In his

states

(African-American}

response

that

his

to
EEOC

interview 2

and the race of co-workers

who were not punished for their alleged mistakes
Mtn.

Defendants'

(white).

(Pl.'s

to Toll the Statute of Limitations under Title VII of the

Civil Rights Act of 1964 (Title VII) and the American Disability
Act 42 U.S. C.
5)

(ADA}

Docket Nos. 14 & 15,

("Pl.' s Resp.") . 3 Blaise' s belated interjection of these facts

is too late:

a Complaint may not be amended by his briefs in

opposition

to

Pittleman,

P.C.,

under

liberal

2

and Continue to Trial,

the

a

This document
elsewhere.

motion

to

dismiss.

332 F. Supp. 2d 909,

is

Katz
917

v.

Odin,

in

the

record,

3

&

(E.D. Va. 2004), even

standards of pro se pleading.
not

Feldman,

with

the

Additionally,
Complaint

or

This document was filed twice: once as a motion (Docket No. 14)
and once as a responsive brief (Docket No. 15).
9

even in his briefs,

Blaise does not state that he was harassed

because of his race.
Even under the liberal construction allowed in the case of
pro

se plaintiffs,

Blaise' s

Complaint

is

any facts from which the Court can make a

completely devoid of
reasonable inference

about the races of the employees in question. To the extent that
Blaise's Complaint states a claim for § 1981 harassment, it will
be dismissed without prejudice.

B.

"Race, Color, and National Origin"

The

second

count,

labeled

"Race,

Color,

and

National

Origin" states that
Other
employees
were
making
similar
mistakes ... but were not subjected to the
same punishments I received. In addition,
Mr [] Robert Swendrznski ... received a raise ...
although we both ... worked for Vibra Hospital
for the same length of time. During the roll
out of [the new system], Dr. Harris hired
three
part
time
new pharmacists
and
started
scheduling
them more
often
and
reduced my hours under the pretext that
[VJ ibra Hospital (cut) the pharmacy budget.
In fact, Dr. Harris created the budget issue
herself.
(Compl. 3). To the extent that Blaise states a claim for racial
or national origin discrimination under Title VII,

it is time-

barred,

statute

and

limitations,

the
for

Court
t:he

same

declines
reasons

to

toll

discussed

the
above.

of

The ref ore,

this claim will be dismissed with prejudice. To the extent that
10

states

Blaise

claim

a

discrimination

under

Complaint

own

workers,
his

his

§

for

1981,

race,

Blaise

the

or

racial

race

national

fails

in

his

differently-treated

of

to

state

origin

co-

and that he was discriminated against on the basis of

race.

On this basis,

this

claim will be dismissed without

prejudice.
Read liberally, Blaise may also be stating an Equal Pay Act
claim.

(Comp!. 3)

("Mr[] Robert Swendrznski ... received a raise ...

although we both ·- worked for Vibra Hospital for the same length
of time.").
Equal
has

To successfully plead a prima facie case under the

Pay Act,

paid

a

plaintiff must allege:

different

national origins;
equal skill,

wages

(2)

effort,

to

employees

( 1)
of

that his employer
different

races

or

that said employees hold jobs that require
and responsibility;

and

(3)

that such jobs

are performed under similar working conditions. See Gustin v. W.
Virginia Univ.,
on Brinkley v.
Cir. 1999)
189

695,

698

(4th Cir.

Harbour Recreation Club,

2003}

180 F. 3d 598,

(relying
613

(4th

(citing Corning Glass Works v. Brennan, 417 U.S. 188,

(1974))).

Additionally,

under the EPA,
the

63 Fed. Appx.

skill,

"to

make

out

a

prima

facie

case

the burden falls on the plaintiff to show that

effort

and

responsibility

required

in

her

job

performance are equal to those of a higher-paid" employee of a
different

race

or

national

origin.

Wheatley v.

Maryland, 390 F.3d 328, 332 (4th Cir. 2004).
11

Wicomico Cty.,

There are two fatal flaws in Blaise's Equal Pay Act claim.
First, as with the § 1981 claim, Blaise failed to state his race
or the race of Swendrznski in the Complaint.

Second,

any Equal

Pay Act claim is time-barred. Although Equal Pay Act complaints
need not

go through

the

EEOC before

coming

to

federal

court,

they must be filed within two years of the last discriminatory
paycheck.

2 9 U.S. C.

§

255 {a) ;

Taylor v.

Millennium Corp.,

No.

1:15-CV-1046, 2016 WL 927185 {E.D. Va. Mar. 4, 2016}

(relying on

Brinkley-Obu v.

345-46

Cir.

1994).

Hughes Training,

Blaise

was

Inc., 36 F. 3d 336,

terminated

brought this suit on January 12,
claims,

on

2016.

December

18,

2013

(4th
and

As with the Title VII

the Court sees no equitable reason to toll the statute

of limitations for this claim. On this basis, Blaise's Equal Pay
Act claim will be dismissed with prejudice.
C•

"Disability"

On

the

third

count,

labeled

"Disability,n

Blaise

that
[t]his is based on the belief or presumption
of a positive HIV medical condition. On
approximately May 14th, 2013, I received a
job offer with PharMerica Corporation at
Kindred Hospital, now Vibra Hospital. Ms.
Cindy Frederick, Senior Pharmacy Recruiter ...
sent me a hiring package list ot do a
physical exam and a drug test. On May 15, I
went to Concentra Medical Centers ... to do
the urine drug test and a physical exam. At
Concentra ... the nurse ... drew some blood. The
result of the medical exam was sent to
PharMerica, but the infection disease nurse
12

pleads

manager [wanted] a copy [of] the medical
record [which Concentra did not provide]. In
the meantime, rumors were spreading at the
hospital that I was sick of HIV ... After
several failed attempts to get my medical
records, I started threatening to file a
lawsuit against Concentra ... Pharmerica and
Vibra Hospital. As the rumor of me having
HIV spread[], Dr. Harris was making (an]
effort
to
terminate
my
position
as
pharmacist.
Vibra Hospital
illegally terminated me
from my employment because of the spread of
the rumors and my complaints of filing a
lawsuit. My employment termination was based
upon
false
and
pretextual
reasons
in
retaliation
for
the
threats
to
file
a
lawsuit, and the rumors.
(Comp!. 3-4) .
To

the

extent

that

Blaise

Disabilities

intends
Act

to

state

("ADA")

a

claim

for

discrimination,

Americans

With

harassment,

retaliation, or retaliatory harassment, such a claim

is time-barred for the same reasons discussed above with regard
to Blaise' s

Title VII

claims,

and there is no equitable basis

upon which to toll the statute of limitations.

This claim will

be dismissed with prejudice.~

D.

"Vibra Hospital of Richmond Vio1ates its own Po1icy"

4

Section 1981 does not present an alternate cause of action for
this claim because that provision only guarantees racial nondiscrimination. 42 U.S.C. § 1981 (a) ("All persons ... shall have
the same right ( s] ... as ... enjoyed by white citizens.") ; Clement v.
Satterfield, 927 F. Supp. 2d 297, 307 (W.D. Va. 2013).
13

On the

fourth

count,

labeled "Vibra

Hospital

of

Richmond

Violates its own policy," Blaise pleads that
On or around November 27th,
2013 I was
brought before a counseling board for job
performance evaluation ... At the end of the
meeting, I was given a warning and 30 day []
period
to
improve.
My
employment
was
terminated after 2 weeks of working and was
in violation of the company [' s] established
policy.
{Compl.

4) .

This

is

apparently

intended

to state a

state

law

wrongful termination claim.
In Virginia,

claims

for wrongful

by the Virginia Human Rights Act

termination are governed

{"VHRA"),

seg. Conner v. Nat'! Pest Control Ass 1 n,
513 S. E. 2d 398,

Code §§ 2 .1-714 et

Inc., 257 Va. 286, 288,

398-99 ( 1999) . The statute of limitations for a

wrongful termination suit under the VHRA is two years.
v.

Tidewater Const. Corp.,

250 Va.

93,

94,

( 1995) ; Bai den-Adams v.

Forsythe Transp.,

422,

2013);

939

432 n.6

F.

Supp.

(E.D.

1220

Va.

(E.D.

Va.

Michael v.
1996).

As

Purcell

458 S.E.2d 291,

Inc.,

969 F. Supp.

292
2d

Sentara Health Sys.,
discussed

previously,

Blaise has not pled any equitable basis upon which to toll the
statute of limitations.

Blaise' s

wrongful termination claim is

time-barred; this claim will be dismissed with prejudice.
E.

C1aims Against Harris

Defendants are correct that employees cannot be held liable
in their individual capacities for violations of Title VII and

14

the ADA. Boykin v. Virginia, No.
at

*4

{E.D.

Va.

Aug.

20,

3:14CV811-HEH,

2015),

aff'd

Virginia Dep't of Juvenile Justice,
2016)

(relying on Lissau v.

180-81 (4th Cir. 1998)
4 72

(4th Cir. 1999)

So.

641

2015 WL 5020896,

sub

F.

nom.

Boykin

App'x 221

Food Serv.,

v.

(4th Cir.

Inc., 159 F.3d 177,

(Title VII); Baird v. Rose, 192 F.3d 462,

(ADA) ) . Therefore,

to the extent that Blaise

states a claim against Harris under Title VII or the ADA,

those

claims will be dismissed with prejudice.
However,
does

not

Defendants are incorrect in asserting that § 1981

"provide

for

individual

liability."

Supervisors may be individually liable where:
"authorize [s),
act"i

(2)

direct [s],

or participate [s]

(Def.' s
(1)

Mem.

8) .

the supervisor

in a discriminatory

the supervisor's act or omission which resulted in the

infringement of rights was
affirmative

showing

of

intentional,

that

fact;

and plaintiff makes an
and

( 3)

the

plaintiff

establishes the elements of a prima facie case for retaliation.
Tibbs

v.

Baltimore

City

Police

Dep't,

No.

2012 WL 3655564, at *6 (D. Md. Aug. 23, 2012)

v. Winchester Homes, CCB-06-278,
Jan.

17,

2007)

CIV.A.

(relying on Atkins

2007 WL 269083,

{quoting Manuel v.

Int' l

RDB-11-1335,

at *9

Harvester Co.,

Supp. 45, 50 (N.D. Ill. 1980))). 5

5

The Fourth Circuit in Tillman v. WheatonHaven Recreation Ass'n, Inc., 517 F.2d 1141
(4th
Cir.
197 5) ,
squarely
answered
the
15

(D.
502

Md.

F.

question of whether individual liability is
allowed under 42 U.S.C. § 1981. In Tillman,
black
applicants
challenged
a
nonprofit
swimming pool association's discriminatory
membership policies. See 517 F. 2d at 1142.
The plaintiffs also sued the directors of
the nonprofit association under 42 U.S. C. §
1981 claiming that these individuals had
established and enforced the discriminatory
policies. See Tillman, 517 F.2d at 1142.
When
the
directors
challenged
their
individual liability for these acts,
the
Fourth Circuit held that "directors become
personally liable when they intentionally
cause a corporation to infringe the rights
secured by 42 U.S.
C ....
§
1981."
Tillman, 517 F.2d at 1146. Other circuits
have held similarly. See Patterson v. County
of Oneida, New York, 375 F.3d 206, 226 (2d
Cir.2004) ("[A)lthough ... Title VII claims
are
not
cognizable
against
individuals,
individuals may be held liable under § 1981
for certain types of discriminatory
acts,
including those giving rise to a
hostile
work
environment.")
(citations
omitted); Allen v. Denver Pub. Sch. Bd., 928
F.2d 978, 983 (10th Cir.1991) (an individual
defendant can be held liable under § 1981 if
the
individual
defendant
was
personally
involved
in the discriminatory conduct);
Johnson v. Chapel Hill Indep. Sch. Dist.,
853
F.2d
375,
381
(5th
Cir.1988)
("A
supervisor can be held personally liable for
violations of § 1981
only upon proof
that he intentionally discriminated against
the plaintiff.")
_s_h_a_z_i_e_r~-v~·~_s_w~·~_V_1_·r_g,1_·n~i_a~_R_e~g......_'_l~-J~a~1_·1.;__~A-u_t_h~.,

No.

CIV.A.
1:08CV00037, 2009 WL 416005, at *5 (W.D. Va. Feb. 17, 2009),
report and recommendation adopted, No. CIV. A. 1:08CV00037, 2009
WL 674385 (W.D. Va. Mar. 12, 2009).
The Fourth Circuit 1 s adoption of individual liability for
board members in Tillman, together with the decisions of sister
Courts of Appeals and of district courts within the Fourth
Circuit Court of Appeals, demonstrate that § 1981 encompasses
16

However, as explained above, the Complaint does not state a
prima facie claim for harassment or discrimination under

1981,

§

and that is true as much for Harris individually as it is for
Vibra as an employer.
and

"Race,

Color,

Accordingly,

and

without prejudice to

National

the extent

those claims
Origin")

that

("Harassments"

will

they are

be

dismissed

intended to be

brought under § 1981.
MISCELLANEOUS

At
motion,
Resp.

the

conclusion

of

Blaise includes a
6-8) .

This

is

his

response

to

the

Defendants'

"Motion to Summon Witnesses."

inappropriate for

two

reasons.

(Pl.' s

First,

the

Court will dismiss all of Blaise's claims. Second, subpoenas are
a

form of discovery,

and all discovery is

forbidden until

the

parties have conducted a discovery conference pursuant to Fed.
R.

Civ.

P.

26(f).

Fed.

R.

Civ.

P.

26(d).

To

the

extent

that

Blaise seeks to compel witnesses, his request is denied.
CONCLUSION

For the reasons stated above, Defendants' MOTION TO DISMISS
(Docket No. 10) will be granted.
To the extent that count one,

"Harassments," seeks relief

under Title VII, that claim will be dismissed with prejudice. To
the extent that count one,

"Harassments," seeks relief under 42

supervisor liability, subject
Tibbs, 2012 WL 3655564, at *6.

to
17

the

requirements

stated

in

U.S.C. 1981, that claim will be dismissed without prejudice. To
the extent that count two,

"Race,

seeks relief under Title VII,
prejudice.

To

the

extent

Color,

and National Origin,"

that claim will be dismissed with

that

count

two,

"Race,

National Origin," seeks relief under 42 U.S.C.
will be dismissed without prejudice.
two,

and

1981, that claim

To the extent that count

"Race, Color, and National Origin," seeks relief under the

Equal Pay Act,
the extent
the

Color,

that claim will be dismissed with prejudice.

that

Americans

count
With

three,

"Disability," seeks

Disabilities

Act,

that

To

relief under

claim

will

be

dismissed with prejudice. To the extent that count four,

"Vibra

Hospital

relief

for

of Richmond Violates

wrongful

termination,

its own policies,"

that

claim

will

be

seeks

dismissed

prejudice.

It is so ORDERED.

Isl
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: August l..!!. .r 2016
.

18

with