Moore v. Mountain States Health Alliance et al

Filing 12

OPINION AND ORDER granting 5 Motion to Dismiss; granting 6 Motion to Strike. Signed by Judge James P. Jones on 10/04/2016. (ab)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
KIMBERLY S. MOORE,
Plaintiff,
v.
MOUNTAIN STATES HEALTH
ALLIANCE, ET AL.,
Defendants.

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Case No. 2:16CV00014
OPINION AND ORDER
By: James P. Jones
United States District Judge

Timothy W. McAfee, Timothy W. McAfee, PLLC, Big Stone Gap, Virginia,
for Plaintiff; Kimberly W. Daniel and Jonathan M. Sumrell, Hancock, Daniel,
Johnson and Nagle, P.C., Glen Allen, Virginia, for Defendant Norton Community
Hospital.
In this action for damages and injunctive relief brought under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the
Civil Rights Act of 1991, 42 U.S.C. § 1981a, the plaintiff alleges that she was
wrongfully terminated by her employer due to age discrimination and in retaliation
for exercise of her rights. A defendant, Norton Community Hospital, has moved to
dismiss the retaliation claim and strike the plaintiff’s prayer for punitive damages. 1
Reviewing the plaintiff’s allegations in the light most favorable to her, I conclude
that the defendant’s Motion to Dismiss and Motion to Strike must be granted.

1

Mountain States Health Alliance, the other defendant, allegedly affiliated with
Norton Community Hospital, has recently filed similar motions.

I.
The Complaint alleges the following facts, which I must accept as true for
purposes of deciding the Motion to Dismiss. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 572 (2007).
The plaintiff, Kimberly Moore, was previously employed by Norton
Community Hospital (“the Hospital”) as an Emergency Department reception
clerk. Her employment was terminated on June 6, 2014. At the time of her
termination, she was fifty-five years old, earned approximately seventeen dollars
per hour, and had been employed with the Hospital for twenty-three years. She
was also nine months away from qualifying for lifetime health insurance, a
retirement benefit available to long-term employees that would have cost the
defendants over a million dollars to provide.

After terminating Moore’s

employment, the defendants replaced her with a younger employee.
Moore was a member of the United Steelworkers Union, and for
approximately twenty years, the terms of her employment with the Hospital had
been governed by a contract negotiated by the union. Around 2011, the Hospital
was acquired by Mountain States Health Alliance (“Mountain States”). Mountain
States “openly opposed employees that belonged to the union and discouraged
employees from continuing their association with the union.” (Compl. ¶ 22, ECF
No. 1.) Moore, however, refused to withdraw from the union.
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In July or August 2013, Moore’s supervisors “began to harass, bully and
emotionally abuse” her on a regular basis. (Id. at ¶ 25.) They “changed her job
duties and titles without providing proper training or instructions” and “constantly
complain[ed] that while [her] performance was compliant, they did not like [her]
personality.” (Id.) Moore claims that she was forced to “endure daily criticisms”
and “attend counseling,” despite her “more than satisfactory” job performance.
(Id. at ¶¶ 16, 26-27.) She alleges that she “became a target of harassment and
abuse” because the defendants “hope[d] that she would quit and forfeit the rate of
pay and retirement benefits” to which she was entitled. (Id. at ¶ 28.) At some
point, she filed a grievance against her supervisors in accordance with the terms of
the union contract.
Moore has asserted two claims against the defendants under the ADEA: (1)
age discrimination and (2) retaliation for filing the grievance. She seeks injunctive
relief, compensatory damages, and punitive damages under the ADEA and the
Civil Rights Act of 1991.
The Hospital moves to dismiss Moore’s retaliation claim for failure to state a
claim upon which relief can be granted. It argues that the Complaint fails to
properly allege that Moore “engaged in activities protected by the ADEA.” (Def’s.
Mot. to Partially Dismiss 1, ECF No. 5.) The defendant also moves to strike
Moore’s prayer for punitive damages on the ground that “the ADEA does not
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provide for such relief.” (Def’s. Mot. to Strike 1, ECF No. 6.) I consider each
motion in turn. 2
II. Motion to Dismiss.
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556).
In ruling on a motion to dismiss, the court must accept as true all of the
factual allegations contained in the complaint, Twombly, 550 U.S. at 572, and it
must view those facts in the light most favorable to the plaintiff. Christopher v.
Harbury, 536 U.S. 403, 406 (2002).

However, “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not
suffice.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

The

complaint’s “well-pleaded facts” must “permit the court to infer more than the
mere possibility of misconduct.” Id. at 679.

2

The defendant filed both motions on August 26, 2016. The plaintiff has not
responded to either motion within the time required by the local rules (fourteen days).
Despite this lapse, I decide the defendant’s motions on their merits rather than by default.
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The ADEA prohibits employers from discriminating against an employee
based on her participation in certain protected activities. See 29 U.S.C. § 623(d).
To establish a prima facie case of retaliation under the ADEA, a plaintiff must
show three things: (1) that she “engaged in protected activity”; (2) that “an adverse
employment action was taken against [her]”; and (3) that “there was a causal link
between the protected activity and the adverse action.” Laber v. Harvey, 438 F.3d
404, 432 (4th Cir. 2006) (en banc). A plaintiff has engaged in “protected activity”
if she has (a) opposed a practice made unlawful by the ADEA or (b) participated in
a proceeding brought under the ADEA. 29 U.S.C. § 623(d); see also EEOC v.
Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005).
Here, Moore pleads that she was terminated in retaliation for “fil[ing] a
grievance in accordance with her [employment] contract.” (Compl. ¶ 29, ECF No.
1.) She also reiterates that the basis for her termination was “retaliation” for “her
exercise of her contract rights.” (Id. at ¶ 31.) However, she pleads no additional
facts about, nor makes further reference to, this “grievance,” and she thus fails to
allege that filing the grievance was a “protected activity” under the ADEA.
An employer cannot discriminate against an employee because she “has
opposed any practice made unlawful by [§ 623].” 29 U.S.C. § 623(d). Practices
made unlawful by § 623 include, among other things, discriminating against
employees because of their age. See 29 U.S.C. § 623(a)(1) & (2). Here, however,
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Moore states only that she “exercised her rights to file a grievance.” (Compl. ¶ 29,
ECF No. 1.) She makes no allegations regarding the subject matter or contents of
that grievance. Thus, she fails to allege that her grievance was made in opposition
to the defendants’ alleged unlawful discrimination.
An employer also cannot discriminate against an employee because she has
“made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or litigation under [the ADEA].” 29 U.S.C. § 623(d).
Here, Moore pleads only that she filed her grievance “in accordance with her
[employment] contract.” (Compl. ¶ 29, ECF No. 1.) She does not state that she
filed this grievance as part of her participation in any ADEA proceeding.
Because Moore has not alleged that she filed a grievance in opposition to a
practice made unlawful under the ADEA or as part of her participation in an
ADEA proceeding, she has failed to plead that she was engaged in “protected
activity.” She has thus failed to establish a prima facie case for retaliation under
the ADEA and, accordingly, has failed to “show[ ] [she] is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Because the Complaint does not “state a claim to relief that is
plausible on its face,” Iqbal, 556 U.S. at 678 (citation omitted), I will grant the
defendants’ Motion to Dismiss as to the claim of retaliation.

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III. Motion to Strike.
A court may “strike from a pleading . . . any redundant, immaterial,
impertinent, or scandalous matter.”

Fed. R. Civ. P. 12(f).

A matter is

“impertinent” or “immaterial” if it is not relevant to the issues involved in the
action. See 2 James Wm. Moore, et al., Moore’s Federal Practice § 12.37 [3] (3d
ed. 1999). Motions to strike under Rule 12(f) are generally viewed with disfavor,
“because striking a portion of a pleading is a drastic remedy.” Waste Mgmt.
Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (internal quotation
marks and citation omitted). However, a court may grant a defendant’s motion to
strike a plaintiff’s claim for punitive damages where punitive damages are not
available under the law. See, e.g., Mitchell v. Lydall, Inc., No. 93-1374, 1994 WL
38703, at *4 (4th Cir. Feb. 10, 1994) (unpublished) (affirming district court’s
decision to strike punitive damages claim under Rule 12(f) where punitive
damages were not available under applicable statute); Taylor v. Oak Forest Health
& Rehabilitation, LLC, No. 1:11-CV-471, 2013 WL 4505386, at *5 (M.D.N.C.
Aug. 22, 2013) (granting defendant’s motion to strike plaintiff’s claim for punitive
damages where punitive damages were not authorized under the relevant statute).
Neither the ADEA nor the Civil Rights Act of 1991 permits recovery of
punitive damages for alleged violations of the ADEA.

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Section 626(b) of the ADEA permits enforcement of the statute in
accordance with the remedies provided in certain sections of the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. Specifically, the ADEA provides for
recovery of compensatory damages for lost wages, stating that “[a]mounts owing
to a person as a result of a violation of [the ADEA] shall be deemed to be unpaid
minimum wages or unpaid overtime compensation.” 29 U.S.C. § 626(b) (citing 29
U.S.C. § 216); see also 29 U.S.C. § 216(b). They may also seek injunctive relief,
including reinstatement. Id. (citing 29 U.S.C. §§ 216-17).
However, neither the ADEA nor the relevant sections of the Fair Labor
Standards Act provide for recovery of punitive damages. Moreover, the Fourth
Circuit has expressly held that “punitive damages are not recoverable under [the
ADEA].”

Walker v. Pettit Constr. Co., 605 F.2d 128, 130 (4th Cir. 1979),

modified on reh’g on other grounds sub nom. Frith v. E. Air Lines, Inc., 611 F.2d
950 (4th Cir. 1979); see also Fariss v. Lynchburg Foundry, 769 F.2d 958, 967 n.11
(4th Cir. 1985). Therefore, Moore cannot properly seek punitive damages under
the ADEA.
The Civil Rights Act of 1991 provides a right of recovery for punitive
damages for claims brought under certain sections of the Civil Rights Act of 1964
and the Americans With Disabilities Act of 1990. 42 U.S.C. § 1981a(a)(1), (2),
(d)(1). It does not provide a right of recovery for claims brought under the ADEA.
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Therefore, Moore cannot properly seek punitive damages for a violation of ADEA
under § 1981a.
Because punitive damages are unavailable in this case as a matter of law, I
will grant the Hospital’s Motion to Strike the plaintiff’s claim for punitive
damages.
III.
For the reasons stated, I conclude that: (1) Moore’s claim of retaliation is not
well-pleaded and must be dismissed; and (2) Moore’s prayer for punitive damages
must be stricken from the Complaint. It is accordingly ORDERED that the
defendants’ Motion to Dismiss (ECF No. 5) and Motion to Strike (ECF No. 6) are
GRANTED. 3
ENTER: October 4, 2016
/s/ James P. Jones
United States District Judge
3

Moore expressly seeks “punitive” damages. (Compl. ¶ 44, ECF No. 1.) While
punitive damages are not recoverable, § 626(b) expressly permits recovery of liquidated
damages, in an additional amount equal to any compensatory damages, where there has
been a “willful violation[ ] of [the ADEA].” 29 U.S.C. § 626(b). The Fourth Circuit has
on occasion referred to such liquidated damages as “punitive” damages. See Herold v.
Hajoca Corp., 864 F.2d 317, 319 (4th Cir. 1988) (upholding the district court’s entry of
judgment non obstante veredicto as to “the jury’s award of a liquidated (punitive)
damages amount equal to the compensatory award” under the ADEA). Given that Moore
alleges that the defendants’ discrimination was “willful[ ]” and “intentional[ ]” but does
not seek liquidated damages as permitted by such allegations, I must grant the
defendant’s Motion to Strike the request for punitive damages. However, this ruling does
not prevent the plaintiff from seeking liquidated damages, as permitted by the statute, and
if supported by the facts. Similarly, my dismissal of the retaliation claim is without
prejudice to an amendment to the Complaint alleging sufficient facts to support it.
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