Blaise v. Harris

Filing 40

MEMORANDUM OPINION. See for complete details. It is so ORDERED. Signed by District Judge Robert E. Payne on 03/06/2017. (mailed copy to pro se Plaintiff) (nbrow)

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

MAR -6 20l7
DR. DIE K. BLAISE,
CLERK, U.S. DISTRICT COlJRT
RICHMOND, VA

Plaintiff,

v.

Civil Action No. 3:16cv23

DR. SANDRA HARRIS and
VIBRA HOSPITAL OF
RICHMOND INC.
I

I

Defendants.
MEMORANDUM OPINION

This matter is before the Court on the MOTION IN SUPPORT OF
MOTION TO DISMISS THE SECOND COMPLAINT
reasons

set

forth below,

the MOTION

(ECF No.

For the

29).

IN SUPPORT OF MOTION TO

DISMISS THE SECOND COMPLAINT (ECF No. 29) will be granted.
BACKGROUND

Plaintiff,
four

count

Harris
asserted

Dr.

complaint

("Harris")
(1)

Die K.

Cause of Action:
Cause of Action:

("First

and

First

Blaise

Vibra

Cause
Race,

of

("Blaise"),

Complaint")

pro se,

against

Hospital

("Vibra")

Action:

Dr.
in

Harassments;

Color and National Origin;

Disability;

and

(4)

filed a
Sandra

which
(2)
(3)

he

Second
Third

Fourth Cause of Action:

Vibra Hospital of Richmond Violates its own Policy.

Vibra and

Harris moved to dismiss the First Complaint and the motion was
granted (ORDER, ECF No. 22}.

That ORDER provided:

To the extent that count one, "Harassments,"
seeks relief under Title VII, that claim is
dismissed with prejudice. To the extent that
count one, "Harassments," seeks relief under
42 § U.S.C. 1981, that claim is dismissed
without prejudice. To the extent that count
two, "Race, Color, and National Origin,"
seeks relief under Title VII, that claim is
dismissed with prejudice. To the extent that
count
two,
"Race,
Color,
and
National
Origin," seeks relief under 42 U.S.C. §
1981,
that
claim
is
dismissed
without
prejudice. To the extent that count two,
"Race, Color, and National Origin," seeks
relief under the Equal Pay Act, that claim
is dismissed with prejudice. To the extent
that count three, "Disability, " seeks relief
under the Americans With Disabilities Act,
that claim is dismissed with prejudice. To
the extent that count four, "Vibra Hospital
of Richmond Violates its own policies,"
seeks relief for wrongful termination, that
claim is dismissed with prejudice.
If Harris chooses to refile the claims which
have been dismissed without prejudice (his
42
U.S.C.
§
1981
harassment
and
discrimination claims} he must do so by
September 9, 2016.
Thereafter,

Blaise

("Second Complaint"}
CAUSE

OF

ACTION

(HARASSMENTS}};

a

new

five

count

complaint

against Harris and Vibra alleging:

UNDER

SECOND

(WRONGFUL TERMINATION

filed

42
CAUSE

USC
OF

1981

(WRONGFUL

ACTION

(Discrimination-Race,

UNDER

FIRST

TERMINATION
42

USC

1981

Color and National

Origin}}; THIRD CAUSE OF ACTION UNDER 42 USC 1981 (DEFAMATION};
FOURTH CAUSE OF ACTION UNDER 42 USC 1981 (INTENTIONAL INFLICTION

2

OF EMOTIONAL DISTRESS); FIFTH CAUSE OF ACTION UNDER 42 USC 1981
(NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS) .
have moved to dismiss the Second Complaint.

Harris and Vibra
Although all five

counts (Blaise has labeled them "Causes of Action") purported to
arise by virtue of 42 U.S.C.
federal law claims.

§

1981,

only the first

two are

The last three are state law claims. 1
FACTS

Blaise is an African-American pharmacist.
1. )

At the

time of his

employment,

(Second Compl.

Blaise had a

Bachelor of

Sciences in Pharmacy and a Doctor of Pharmacy degree.
He

also

alleges

twelve

years

of

relevant

work

including extensive training in clinical pharmacy.

(Id.

2013

in Richmond,

Virginia.

1

(Id.

~

1.)

~

2.)

experience,

(Id.)

Kindred Hospital hired Blaise through PharMerica,
May 20,

~

Inc.

In the

on

first

Blaise
also
states
that
"[m]y
wrongful
termination
violates
. . The Virginia Human Right Act § 2.2-3900." (Second
Compl. ~ 1.) That Act simply does not apply to Plaintiff's case.
Section 2.2-3903(A)
of the Act states,
in relevant part,
"Nothing in this chapter
creates, nor shall it be
construed to create, an independent or private cause of action
to enforce its provisions, except as specifically provided in
subsections B and C." Subsection B applies only to employers
with between five and twenty employees. Vibra likely staffs more
than twenty employees. Subsection C imposes a statute of
limitations on any cause of action under the Act of within 300
days from an employee's termination. Defendant filed a complaint
over a year after his termination from Vibra. Finally, in Doss
v. Jamco, Inc., the Supreme Court of Virginia held that § 2.23900(D) of the Act does not create a common law cause of action
based on the public policy reflected in the Act. See 254 Va.
362, 371 (1997).
3

three months

of

his

employment,

Blaise

received

training and

positive performance evaluations in the use of the hospital's
medication order entry software.
On

September

1,

Vibra

2013,

including its pharmacy.

(Id.)

(Id. ,

acquired

Kindred

Hospital,

12.) Vibra replaced the existing

medication order entry software with HMS version 1. O ("HMS") .
(Id.)

HMS differed from the old software because it used paper

order entry and a paper Medication Administration Record system
rather than electronic order entry.

(Id. )

Blaise alleges that

all pharmacists received two weeks of intensive training in HMS
except the one in which he was employed.
he

received

only

fifteen

minutes

According to Blaise,

of

(Id.)

instruction.

Consequently, says Blaise, he learned the program on his own and
took longer to process medication orders than the fully-trained
pharmacists.

(Id.)

Blaise worked under Harris, the Director of Pharmacy and a
white

woman,

until

2013.

(See id.

hired

three

,, 1,

scheduled
medication
December.

three

reduced

dispensation
(See id.

,

terminated on December 18,

After Vibra rolled out HMS,

pharmacists

(Id. ,

those
and

employment

14.)

part-time

training on HMS.
scheduling

his

9.)

20.)

who

received

two

Harris

weeks

of

Blaise alleges that Harris started

pharmacists
Blaise' s
errors

more

hours.
in

HMS

of ten
(Id.)
from

than

he

Blaise
August

was
made

through

He claims that several clinical staff

4

made medication errors but that he was the only staff member who
received disciplinary action.
Blaise

alleges

that,

(Id.)

from

August

through

Harris created a hostile work environment.
Specifically,

he

alleges

that

Harris

December

2013,

(Second Compl. , 14.)

routinely

asked

him

to

leave at the end of his shift regardless of whether he completed
his

work

for

the

day.

(Id. )

He

further

alleges

that

Harris

called him at home to request that he close the pharmacy,
then reprimanded him for uncompleted tasks
(Id.)

Finally,

Blaise

alleges

that

the following day.

Harris

made

remarks" and "frequent phone call [sic] threat[s]
to overtime."

"offensive

[with] respect

(Id.) According to Blaise, Harris treated him this

way due to his race and rumors that he was HIV positive.
3t

He

21.)

Swendrznski,
same way.

and

alleges

that

Harris

did

not

treat

(Id. ,,

Dr.

Robert

a white pharmacist also working under Harris,

(Id. ,

the

15.) These conclusory allegations are the sole

support for the harassment and discrimination claims.
Vibra terminated Blaise's employment on December 18,
(Id. ,

2013.

1.) That was done, according to the Second Complaint,

retaliation

for

(1)

rumors

that

Blaise

had

HIV

and

threat Blaise made to take legal action against Vibra.
1, 4.)

5

(2)
(Id.

in
the
,,

LEGAL STANDARD

Fed.

R.

Civ.

P.

12(b) (6)

permits

a

party

dismissal of a claim if the complaint fails
upon which

relief

can be

granted."

Fed.

to

move

for

"to state a claim

R.

Civ.

P.

8(a) (2)

requires "a short and plain statement of the claim" showing that
the

pleader

dismiss,

a

is

entitled

complaint

to

must

relief.
contain

"To

survive

sufficient

a

motion

factual

to

matter,

accepted as true, to 'state a claim to relief that is plausible
on

its

face.'

Ashcroft

II

v.

Iqbal,

556

662,

U.S.

678(2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Courts

should

allegations

in

assume

the

the

veracity

Complaint,

and

of

should

all
deny

well-pleaded
a

motion

to

dismiss where those well-pleaded allegations state a plausible
claim for relief.

Id.

at 679. A claim is "plausible" when the

plaintiff pleads facts sufficient to allow the court to draw the
reasonable

inference

alleged misconduct.

that

Twombly,

grant a motion to dismiss,
nothing more

than

the

legal

defendant

is

liable

for

the

550 U.S. at 555. The court should
however,

where the allegations are

conclusions,

or where

they permit

a

court to infer no more than a possibility of misconduct. Iqbal,
556 U.S. at 678-79.
A

court

pleadings

must

liberally.

typically

construe

See Erickson v.

a

pro

Pardus,

se

plaintiff's

551 U.S.

89,

94

(2007) . Nonetheless, a court is not required to accept a pro se

6

plaintiff's

legal

conclusions

allegations,

Twombly,

inferences,

unreasonable

550

that

are

U.S.

555,

at

conclusions,

presented

as

factual

"unwarranted

or

or arguments."

E.

Shore

Mkts., Inc. v. T.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th
Cir. 2000).
DISCUSSION

The two claims under 42 U.S.C.
Causes of Action)
plausibility

§

1981 (the First and Second

fail to allege sufficient facts to meet the

standard

of

Iqbal

and

Twombly.

In

the

Second

Complaint, Blaise does no more than add conclusory statements to
the

First

Complaint

discrimination.
under

Virginia

The

three

law.

MOTION TO DISMISS

alleging
state

Accordingly,

race-based

harassment

law

are

the

THE SECOND COMPLAINT

claims
MOTION

time-barred

IN

(ECF No.

and

SUPPORT
29)

will

OF
be

granted and the action will be dismissed with prejudice.
A.

First Cause of Action: Harassment Under 42

Under 42 U.S.C.
same

right

in

§

every

1981,

"All persons .

State

to

u.s.c.

§

1981

. shall have the
make

and

enforce

contracts . . . as is enjoyed by white citizens. " 2 Blaise rests

Subsection b of 42 u.s.c. § 1981 further defines "[m]ake and
enforce contracts" as including the
"making,
performance,
modification and termination of contracts, and the enjoyment of
all
benefits,
privileges,
terms,
and conditions
of
the
contractual relationship." Thus, § 1981 provides a cause of
action for claims of racially hostile work environment and
racial
discrimination,
as
Blaise
alleges
in
the
Second
2

7

his

§

1981

harassment

claim

on

the

theory

that

his

white

supervisor, Harris, created a racially hostile work environment.
To properly plead a harassment claim, a plaintiff must plausibly
assert that there was harassment and facts
could find that such harassment was:
on race; and

(3)

of

Spriggs v.

Diamond Auto Glass,

Given a

unwelcome;

(2)

jury
based

sufficiently severe or pervasive to alter the

conditions

2001) .

"(1)

from which a

employment

liberal

and

create

an

abusive

242 F.3d 179,

reading,

the

Second

atmosphere."

183-84

(4th Cir.

Complaint

can be
However,

construed to assert unwelcome harassment by Harris.

the Second Complaint does not plead sufficient facts to support
a claim that the alleged harassment was "sufficiently severe or
pervasive to alter the conditions of employment or an abusive
atmosphere."
Nor does

Second Complaint plausibly plead race-based

In

harassment.

the

fact,

Blaise

does

not

provide

any

describing the substance of the "offensive remarks."

facts

Instead,

he only alleges that Harris "frequently called me from home to
tell me to close the pharmacy and go home then the next day she
reprimanded
Compl.

~

me

15 . )

for

for

[sic]

tasks

not

completed."

(Second

Although Blaise asserts,

in conclusory fashion,

that this behavior was animated by race,

conclusory allegations

Complaint. See CBOCS West, Inc. v. Humphries, 553 U.S. 442, 45051 (2008).
8

of

race-based

Iqbal.

conduct

do

not

pass

muster

under

Twombly

and

Therefore, the First Cause of Action will be dismissed;

as this is Blaise' s

second chance,

the dismissal will be with

prejudice.
B.

Second

u.s.c.

Cause

of

Action:

Racial

Discrimination

plaintiff must allege:

(1)

minority";

(2)

"that

the

employment

was

because

of

discrimination
458

was

"that he

345

member of a
termination

defendants'
his

race;"

intentional."

F.3d 332,

is a

and

Jordan

(4th Cir.

1981, a

§

v.

2006),

(3)

racial
of

his

"that

their

Alternative

Res.

overruled on other

grounds, Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264
Cir.

2015);

6026441,

42

1981

§

To state a claim of racial discrimination under

Corp.,

Under

Long

at

*2

v.

Teradata

(E.D.

Va.

Corp.,

Dec.

No.

4,

2012);

1:12cv787,
see

also

(4th

2012

WL

Mian

v.

Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087
(2d Cir. 1993).
In
2009) ,

Francis
three

other claims,
racially

v.

African-American

motivated,

they

white; and

were
(3)

588

F.3d

police

186,

officers

195

(4th

alleged,

Cir.
among

that their firing by the Mayor of Baltimore was

substantiate their
(1)

Giacomelli,

§

in

violation

of

42

U.S.C.

§

1981.

To

1981 claims, the officers only alleged that

African-American;

(2)

the

defendants

were

all

the defendants did not terminate and physically

9

The Fourth

remove white members of the Police Department.

Id.

Circuit

"conclusory

held

that

these

insufficient to state a

allegations

were

and

1981 claim." Id.

§

As the defendants properly point out, the substance of the
factual allegations in this case closely parallel those made by
the

officers

alleges
"other

in
he

that

is

In

Francis.

employees"

an

made

punishment as he did.

his

Second

African-American,
errors

but

did
~

(Second Compl.

Complaint,

and
not

19.)

he

Blaise

claims

receive

the

that
same

However, the Second

Complaint does not

identify the

job positions were,

the severity and frequency of their errors,

or their race. 3

(Id.)

In sum,

"other employees,"

what their

the Second Complaint fails

to

allege facts sufficient to plausibly plead that Vibra terminated
Blaise's

employment

based

on

his

race,

or

that

any

alleged

racial discrimination was intentional.
Blaise
form,

but

intentional

also
he

alleges
fails

to

discrimination

disparate
plausibly
in

the

treatment,
plead

in

facts

disparity

conclusory
that

or

that

show
the

disparity was based on race. The white pharmacist, Swendrznski,
and Blaise worked at Vibra for the same length of time but only
Swendrznski received a pay raise.

(Id.)

However,

Blaise fails

Blaise does allege that Harris herself made a prescription
error, but she was his supervisor and he does not link any
aspect of his termination claim to the error allegedly made by
Harris. (Second Compl. ~~ 13, 19.)
3

10

to

allege

facts

that

showing

Vibra

in

engaged

race

discrimination in deciding to of fer Swendrznski a raise but not
offering one to Blaise.

(Id.)

As did the plaintiffs in Francis,

Blaise confuses correlation between race and his
Defendants with causation. 4

treatment by

The Second Cause of Action will also

be dismissed with prejudice.
C.

Third Cause of Action: Defamation

Next,

Blaise presents a claim for defamation.

The statute

of limitation for injuries resulting from defamation is one year
after the cause of action accrued.
(2016).
18,

Blaise' s

2013.

employment with Vibra

(Second

defamatory conduct
(Id.

~

3.)

Va.

Compl.

~

1.)

(without

his

8.01-247.1

§

terminated on December

Blaise

lasted until

Assuming

Code Ann.

final

deciding)

states

that

day of
that

employment.

the

claim can be related back to the First Complaint,

Vibra's

defamation

Blaise first

filed this action on March 17, 2016, well over a year after the
cause of action,
of

Action

is

if any, accrued.
time-barred

under

Accordingly, the Third Cause
Virginia

law

and

will

be

dismissed with prejudice.

Blaise also states that Vibra terminated his employment in
retaliation to rumors that he was HIV positive and threatening
to take legal action against Vibra because of those rumors. (Id.
~ 1) . This type of allegation is not contemplated within the
claims that are available under § 1981.

4

11

D.

Fourth and Fifth Causes of Action: Intentional Infliction
of Emotional Distress and Negligent Infliction of Emotional
Distress

Blaise
emotional

alleges

distress

claims
and

for

the

the

intentional

negligent

distress by the defendants.

~~

{Id.

infliction of

infliction of
37-43.)

emotional

Assuming

{without

deciding)

that Blaise has a colorable claim under Virginia law,

there

a

injury

is

two-year

torts.

limitation
emotional

statute

Va.

applies

Code
to

distress

distress. See,

~,

period.

on

March

limitations

Ann.

claims

and

8.01-243.

§

of

for

intentional

negligent

infliction

all

personal

The

two-year

infliction
of

of

emotional

Washington v. Vertiss, LLC, No. 1:14cvl250,

2015 WL 965931, at *3
filed

of

17,

Accordingly,

{E.D. Va. Mar. 4,
2016,

long

past

2015). This action was

the

two-year

limitation

these claims also are time-barred under

Virginia law, and the Fourth and Fifth Causes of Action will be
dismissed with prejudice.

12

CONCLUSION

For the foregoing reasons,

the MOTION IN SUPPORT OF MOTION

TO DISMISS THE SECOND COMPLAINT

(ECF No.

29)

will be granted.

The action will be dismissed with prejudice.
The

Clerk

is

directed to

send a

copy of

the

Memorandum

Opinion to Dr. Die K. Blaise.
It is so ORDERED.

/s/
Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date: March
2017
1

---fe

13