United States District Court, E.D. Virginia, Richmond Division
JAMES G. WALKER, Plaintiff,
MARY WASHINGTON HEALTHCARE, Defendant
Hannah Lauck Judge.
matter comes before the Court on Defendant Mary Washington
Healthcare's Motion to Dismiss (the "Partial Motion
to Dismiss") pursuant to Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 4). Plaintiff James G. Walker,
proceeding pro se,  has responded to the Partial
Motion to Dismiss. (ECF No. 8.) Mary Washington Healthcare
has replied. (ECF No. 9.) The Court dispenses with oral
argument because the materials before it adequately present
the facts and legal contentions, and argument would not aid
the decisional process. The Court exercises jurisdiction
pursuant to 28 U.S.C. § 1331. For the reasons that follow,
the Court will: (1) grant the Partial Motion to Dismiss, (ECF
No. 4); (2) dismiss Count I; and, (3) order Walker to file an
amended complaint that sets forth the factual and legal bases
for Counts II and III.
Standard of Review
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5 A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiffs well-pleaded allegations are taken as true and
the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual
allegations, however, and "a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "require [ ] only *a
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 and the
grounds upon which it rests.'" Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (omission in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must assert facts that rise above speculation and
conceivability to those that "show" a claim that is
"plausible on its face." Iqbal, 556 U.S.
at 678-79 (citing Twombly, 550 U.S. at 570;
Fed.R.Civ.P. 8(a)(2)). "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). Therefore, in
order for a claim or complaint to survive dismissal for
failure to state a claim, the plaintiff must "allege
facts sufficient to state all the elements of [his or] her
claim." Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (citations
district courts have a duty to construe pro se
pleadings liberally. Bracey v. Buchanan, 55
F.Supp.2d 416, 421 (E.D. Va. 1999). Apro se
plaintiff, however, must nevertheless allege a cause of
action. Id. (citing Sado v. Leland Mem 7
Hosp., 933 F.Supp. 490, 493 (D. Md. 1996)). The
Court cannot act as apro se litigant's
"advocate and develop, sua sponte,
statutory and constitutional claims" that the litigant
failed to raise on the face of the complaint. Newkirk v.
Circuit Court of Hampton, No. 3:14cv372, 2014 WL
4072212, at *1 (E.D. Va. Aug. 14, 2014).
Procedural and Factual Background
Summary of Allegations in the Amended
worked as a pharmacist for Mary Washington Healthcare from
August 4, 2008, until his termination on February 25, 2015.
Walker typically worked the night shift, from 9:00 p.m. to
7:00 a.m. As a pharmacist, Walker supervised technicians.
During the initial period of Walker's employment,
had "numerous problems with two night shift technicians,
" both of whom were white. (Compl. ¶ 10.) According
to Walker, "Colleen Peace of human resources and the
pharmacy management" supported the two white
January 16, 2012, Linda Koch, Administrative Director of the
Pharmacy Department, sent Walker an email threatening to
terminate him if he did not complete a computer learning
module. Koch sent this email while Walker was off-duty,
forcing him to complete the module on his personal time.
Walker alleges that no other pharmacist received a similar
threat of terminated employment for failure to complete this
task. On the other hand, when a white pharmacist failed to
complete "something of this nature, " Mary
Washington Healthcare provided him extra time to complete the
assignment while on duty. (Id. ¶ 11.)
March 5, 2012, Walker applied for the position of night shift
pharmacist at Stafford Hospital. Although Walker had
seniority and more experience, Koch hired a white pharmacist,
Noah Bell, for the position. On February 25, 2015, Becky
Womack, Director of Pharmacy; Thoa Nguyen, Operations Manager
of Pharmacy; and Peace fired Walker "for errors."
(Id. ¶ 13.) Mary Washington Healthcare fired
Walker without first suspending him. In contrast, when Mary
Washington Healthcare fired Mike Checka, a white pharmacist,
he received numerous suspensions before termination.
Likewise, Mary Washington Healthcare suspended Brittney
Black, a white technician, numerous times before firing her.
November 24, 2015, Walker filed the Complaint in this Court,
alleging discrimination and violations of his constitutional
rights. Walker alleges that this case "is a civil action
under 42 U.S.C. § 1983 seeking damages and injunctive
relief against [Mary Washington Healthcare] for committing
acts, under color of law, with the intent and for the purpose
of depriving [him] of rights secured under the Constitution
and laws of the United States." (Compl. ¶ 1.)
Walker more specifically organizes his claims as follows:
Count I: "Constitutional and Civil Rights Pursuant to 42
U.S.C. §§ 1983, 1988: Violation of Fourteenth