United States District Court, E.D. Virginia, Norfolk Division
ALESHIA R. PARKER, Plaintiff,
EYE SURGERY LIMITED, LLC ET ALL., Defendant.
REPORT & RECOMMENDATION
TOMMY E. MILLER, Magistrate Judge.
This matter comes before the Court on a 12(b)(6) Motion to Dismiss for failure to state a claim upon which relief can be granted, by Defendants Peggy Dehne and Martin Casey ("Supervisory Defendants"). ECF No. 26. For the reasons stated herein, the undersigned RECOMMENDS that Supervisory Defendants' motion be GRANTED, and the complaint be dismissed regarding Defendant Peggy Dehne in her individual and official capacity, and dismissed regarding Defendant Martin Casey in his individual and official capacity.
A. Procedural History
On March 5, 2013, Aleshia Martin ("Plaintiff") filed an EEOC complaint against Virginia Center for Eye Surgery ("VCES") and Beach Eye Care, Inc. ("BEC"). ECF No. 4 ¶ 14. On September 25, 2013, the EEOC issued Plaintiff a 90 Day Notice of Right to Sue. ECF No. 4 ¶ 14. On December 23, 2013, Plaintiff filed a motion to proceed in forma pauperis, which was granted on January 2, 2014. ECF Nos. 1; 3. Plaintiff then filed a Complaint against VCES, BEC, and both Peggy Dehne and Martin Casey in their individual capacities and official capacities. ECF No. 4. On February 19, 2014, Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) and Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 8, 9. On March 3, 2014, Plaintiff filed her Cross Motion to Amend and Brief in Opposition to Defendants' Motion to Dismiss. ECF Nos. 13, 14. Defendants filed a Reply to Plaintiff's Brief in Opposition, on March 6, 2014. ECF No. 15.
Magistrate Judge Tommy Miller conducted a hearing on Defendants' Motion to Dismiss and Plaintiff's Cross Motion to Amend on May 29, 2014, allowing Plaintiff to conduct depositions of up to three individuals on factors of employment, and ordering Defendants to file a Supplemental Motion to Dismiss. ECF Nos. 21, 22. On Sept 10, 2014, Defendants withdrew their February 19 Motion to Dismiss, and filed a renewed Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and memorandum in support. ECF Nos. 25, 26.
An evidentiary hearing was held before Magistrate Judge Tommy Miller on Tuesday, October 07, 2014, and upon discovery of controlling precedent, Defendants moved to convert their 12(b)(1) motion to dismiss for lack of subject matter jurisdiction into a Rule 56 motion for summary judgment. Judge Miller DENIED this motion to convert, without prejudice to refiling as a Rule 56 motion. ECF No. 30. Defendants therefore withdrew their 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, and oral arguments were presented on the remaining 12(b)(6) motions related to personal supervisor liability and exhaustion of administrative remedies. ECF No. 30.
On October 8, 2014, Plaintiff filed a Proposed Amended complaint, with more allegations relevant to the pending motion to dismiss for failure to state a claim. ECF No. 31.
B. Factual Background
Plaintiff was hired by Virginia Center for Eye Surgery ("VCES") on September 9, 2011 to be a medical Administrative Assistant. ECF No 4 ¶ 18; Casey Dep. 17:12-15. Peggy Dehne, the nursing clinical director for VCES, was Plaintiff's direct supervisor. ECF No. 4 at ¶¶ 21, 22; Casey Dep. 9:1-2; Dr. G. Peyton Neatrour Dep. 20:8-14. Martin Casey, the administrator of VCES, was Plaintiff's senior manager. ECF No. 4 at ¶¶ 21, 22; Dr. G. Peyton Neatrour Dep. 20:8-14. Both Dehne and Casey were involved in the decisions of hiring, reviewing, disciplining, and firing Plaintiff. ECF No. 4 at ¶¶ 39-47; Casey Dep. 20:13-21:8; 34:1-5; 34:12-24; 35:8-36:5; Parker Dep. 53:18-25. Plaintiff understood her duties to include "receiving patients, data entry, answering phone calls, collecting payments, scheduling surgeries, cancelling appointments and other administrative duties." ECF No. 4 at ¶ 19; Parker Dep. 9:22-10:14. In February 2012, Plaintiff received a positive performance review. ECF No. 4 ¶ 32.
On April 25, 2012, for "Administrative Professionals Day, " Plaintiff received a certificate of appreciation thanking her for her hard work. ECF No. 4 at ¶ 33, Exhibit 5. On or about May 29, 2012, Plaintiff informed Dehne that she was pregnant. ECF No. 4 ¶ 34. Plaintiff alleges that Dehne made offensive and discriminatory comments about Plaintiff's pregnancy, including asking her why she had gotten pregnant, and telling her that she should have used birth control. ECF No. 4 ¶¶ 35-36. Plaintiff alleges that Dehne told another employee that Plaintiff was irresponsible for getting pregnant, and that Dehne did not expect her to return to work after having the baby, because she did not think that Plaintiff could afford to pay for daycare. ECF No. 4 ¶¶ 37-38. Plaintiff alleges that she was treated differently from non-pregnant employees after she announced her pregnancy. ECF No. 4 ¶¶ 39-49. Specifically, Plaintiff alleges that she was required to send emails to her supervisor with an explanation whenever she was late for work, while non-pregnant employees were not. ECF No. 4 ¶ 39. When non-pregnant employees had medical appointments or needed time off for personal reasons, it was given to them without questions, yet Plaintiff was required to give a doctor's note or other justification. ECF No. 4 ¶ 39.
On June 8, 2012, Plaintiff received a negative work performance review, listing nine areas which needed improvement. ECF No. 4 ¶ 40; ECF No. 4, Exhibit 3. Areas for improvement included a high frequency of errors in Plaintiff's work, excessive lateness, and failure to give notice for her regular absences. ECF No. 4, Exhibit 3. She was relieved of performing some of her initial job duties. ECF No. 4, Exhibit 3. On June 28, 2012, Plaintiff had a meeting with Casey in which she raised her concerns, but he dismissed her complaints and admonished her. ECF No. 4 ¶ at 44. On November 19, 2012, Plaintiff received another negative performance evaluation, in which she was below satisfactory in the majority of categories. ECF No. 4 ¶ 46, Exhibit 5. While she met the standard in "equipment, " and "specific job skills, " and exceeded the standard in "guest relations, " she was below standards in "cooperation, " "initiative, " and "patient information, " and failed for "attendance and punctuality." ECF No. 4 ¶ 46, Exhibit 5. Her areas listed as needing development were her tardiness, absenteeism, and work performance, with the summary that "after repeated warnings both verbal and written there has been moderate improvement but unfortunately there has not been enough of an improvement to warrant continued employment and the company has decided to terminate her employment." ECF No. 4, Exhibit 5. On November 27, 2012, Dehne and Casey conducted a meeting with Plaintiff to discuss her performance evaluation, and asked her to resign. ECF No. 4 ¶¶ 48-49. Plaintiff refused, and was terminated by Casey and Dehne. ECF No. 4 ¶ 51.
C. Additional Facts Alleged
In her proposed Amended Complaint, Plaintiff alleged additional facts relevant to the instant motion. ECF No. 31. She specifically alleged that both Casey and Dehne exercised supervisory control over her. ECF No. 31 ¶ 25. She also stated that in her June 28, 2012 meeting with Casey, Casey blamed Plaintiff for revealing her pregnancy to Dehne, saying that Dehne was entitled to her own personal opinion on the matter; Plaintiff grew extremely upset and embarrassed, began to cry, and left the meeting in distress. ECF No. 31 ¶ 46. After this incident, Plaintiff did ...