United States District Court, E.D. Virginia, Richmond Division
DILLARD L. SUMNER, JR., Plaintiff,
MARY WASHINGTON HEALTHCARE PHYSICIANS d/b/a MARY WASHINGTON HEALTHCARE, et al., Defendants.
HANNAH LAUCK JUDGE
matter comes before the Court on the Partial Motion to
Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) filed by Defendant Mary Washington
Healthcare Physicians C'MWHP"). (ECFNo. 40.)
Plaintiff Dillard L. Sumner, Jr. responded, and MWHP replied.
(ECFNos.43, 44.) The Court exercises jurisdiction pursuant to
28 U.S.C. § 1331. TheCourt dispenses with oral argument
because the materials before it adequately present the facts
and legal contentions, and argument would not aid the
decisional process. For the reasons that follow, the Court
will grant the Partial Motion to Dismiss.
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 5A
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
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 Ail, 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.L DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (citations
Procedural and Factual Background
Summary of Allegations in the
Sumner and Wall's Working Relationship
2007, MWHP hired Sumner as the "Director, Compensation
and Benefits & HRIS." (Second Am. Compl. ¶ 32.)
Sumner reported directly to Bob Jensen, the Director of Human
Resources for MWHP. Defendant Kathryn Wall was the Executive
Vice President of Human Relations for MWHP. Sumner was
"extremely qualified" for the Compensation and
Benefits role. (Id. ¶ 34.) Wall, however, made
professional errors that Sumner would not have made,
(see, e.g., Id. ¶¶ 39, 42), because her
degree in art history and background in organizational
development "did not adequately prepare her" for
her "job responsibilities." (Id. ¶
54). On at least one occasion in early 2012, Wall's
inexperience and "inability to comprehend" the
Compensation and Benefits arena, caused her to "set
inaccurate or difficult timelines, " for a project.
Second Amended Complaint describes, in thirty-six pages, the
seven-year working relationship between Sumner and Wall.
Throughout late 2007 and early 2008, Wall "disregarded
[Sumner's] advice" that employees had to be
compensated for volunteer events. (Id. ¶ 38.)
From March to December 2008, Wall "was constantly at
odds" with Sumner regarding MWHP employee salaries,
setting salaries without consulting Sumner, and
"intentionally circumventing [Sumner] by making
offers" Sumner did not believe were prudent.
(Id. ¶ 39.) In 2008, when Sumner developed a
"market merit structure methodology" system that
did not align with Wall's expectations, Wall became
"visibly upset" with him. (Id.
¶¶ 40-41.) In later years, Wall twice
"unilaterally overrode" Sumner's "market
merit structure methodology" system, (Id.
¶ 40), and at one point "attempted to remove salary
determination from Mr. Sumner's control, "
(Id. ¶ 45). During 2009, Sumner and Jensen
disagreed regarding salary quotes for employees at a new MWHP
hospital. Although Jensen's policies violated
"guidelines, " Wall "always supported"
Jensen over Sumner. (Id. ¶ 42.) Between 2010
and 2012, Sumner's department lost three Compensation
Analysists whose work Wall told Sumner to "assume,
" resulting in six or seven day workweeks, (Id.
in mid-2012, " Sumner noticed that Wall "treated
him differently that [sic] she did the other directors,
" meeting with him less often. (Id. ¶ 47.)
Wall also displayed a "complete lack of interest"
in Sumner's department. (Id. ¶ 48.) She
"made no effort, whatsoever to check with Mr. Sumner
regardless of his efforts or health, " (Id.
¶ 91), and did not respond to Sumner's emails while
she was on vacation, although she did respond to other
employees' emails, (Id. ¶ 97). Wall also
failed to recognize Sumner's "outstanding
efforts" on a substantial project. (Id. ¶
"routinely circumvented" Sumner by sending requests
to his employees instead of him, ignoring his decisions
altogether, (Zc/.¶ 48), or "exclud[ing] Mr. Sumner
from issues affecting his department, " (Id.
¶ 51). Wall once reassigned one of Sumner's
associates without consulting or discussing it with Sumner.
(Id. ¶51.) Wall's "circumvention"
of Sumner continued throughout his employment at MWHP,
including one instance when she "resisted Mr.
Sumner's advice by not implementing a procedure for
clocking meal times." (Id.¶ 64.)
Sumner's 2012 and 2014 Leave for Diabetes-Related
has been diabetic for over 20 years, although Wall only
became aware of Sumner's illness before his October 2012
surgery. In October 2012, Sumner developed a bone infection
in his right foot. Knowing the infection would require
surgery, Sumner told Wall about his health issues, including
his diabetes. Sumner requested, and was granted, six
weeks' leave under the Family and Medical Leave Act
("FMLA"), 29 U.S.C § 2601, et seq.,
for the surgery and the ensuing diabetes-related
complications. Despite minimal staffing, Sumner's
department met most deadlines on time and fell only slightly
behind during his absence on this 2012 FMLA leave.
Cost-cutting measures at MWHP continued through February
2014, when Sumner faced the decision whether or how to
eliminate one part-time and two full-time employees.
March 5, 2014, Wall received a list of "High Risk
Individuals" under the company's health plan, a
document naming individuals with higher risk profiles and
therefore higher health care premiums. Because Sumner
possessed three of the four major factors identified as
"high risk, " the list classified Sumner as a
"substantial risk." (Id. ¶ 69.)
afterward, in mid-March 2014, Sumner developed a bone
infection in his left foot that necessitated another surgery.
When Sumner told Wall about the need for surgery, she
"expressed concern over the amount of work to be
done." (Id. ¶ 86.) Sumner "felt
pressured" by this comment, and it was the "main
factor" in Sumner delaying his surgery by a week.
(Id. ¶¶ 72, 86.)
the delay, Sumner worked to "properly brief Wall and his
department; to "transition work in progress in
anticipation of his upcoming absence"; and, to
"perform further work on projects [Wall]... had
indicated had to be completed." (Id. ¶
72.) Also during the delay, Sumner joined one meeting by
phone in lieu of walking to the conference room because he
needed to remain seated with his leg elevated. (Id.
¶ 74.) "[D]espite being aware of his underlying
medical condition, ** his "[then-]current medical
condition caused by the bone infection, '* and his
"work ethic in delaying his surgery for work, "
Wall verbally reprimanded Sumner for not attending the
meeting in person. (Id. ¶ 74.) Before leaving
for surgery, Sumner told Wall that he anticipated
"additional recovery time due to the severity of the
infection and the resulting, related medical
complications.'* (Id. ¶ 75.) Wall responded
that if Sumner "could not delay the surgery, he had to
get back to work as quickly as possible." (Id.
surgery and ensuing complications required Sumner to remain
in the hospital from March 20, 2014, through March 29, 2014.
He recovered at home, on approved FMLA leave, for six weeks,
during which time he attempted to "join at lest [sic]
one meeting by phone." (Id. ¶ 77.) He also
stayed in contact with his group and remained available by
phone. Given the pressure he felt, Sumner worried more about
missing work than he did about his medical condition and
Return from 2014 FMLA Leave
April 28, 2014, continuing his FMLA schedule on an approved
schedule, Sumner returned to work on a limited basis of 20
hours per week as ordered by his doctor. This modified
schedule was to last two weeks. However, Wall assigned Sumner
"an increased work load" that prevented Sumner from
adhering to the half-day schedule. (Id. ¶ 78.)
Wall also "became extremely annoyed" with Sumner
when he was late to work one morning due to post- surgery
medical complications. (Id. ¶ 79.) Sumner does
not say that he told Wall that the increased work load
required work beyond the modified 20-hour schedule, or that
Sumner requested additional staff or extended deadlines in
order to adhere to this FMLA reduced schedule.
April 29, 2014, the day after Sumner returned from leave,
Wall presented him with a Performance Improvement Plan
("PIP") that "addressed multiple areas of
alleged performance deficiencies for which [Sumner] had not
been previously counseled or spoken to about."
(Id. ¶ 82.) Although the "normal
procedure" was for PIPs to accompany a "Needs
Development" performance evaluation, Sumner had never
received such an evaluation. (Id. ¶ 83.) Sumner
had previously received positive performance evaluations for
each year of his employment, including ratings of
"Successful" for years 2008 through 2011 and a
rating of "Exceeds Expectations" for 2012.
(Id. ¶ 93.) MWHP did not conduct a performance
evaluation for Sumner in 2013.
PIP, Wall "accused Mr. Sumner of not communicating with
her about his medical leave" and not providing adequate
orientation for a new compensation analyst. (Id.
¶¶ 86, 90.) Sumner states that he did communicate
with Wall directly, "during a one-on-one meeting prior
to his leave, " (Id. ¶ 86), and that he
informed Wall's assistant about his leave, "knowing
that she would (and did) remind Ms. Wall." (Id.
¶ 87.) Sumner also states that he "personally
provided training" for the new compensation analyst, and
even checked in with her daily during his hospital stay and
recovery. (Id. ¶ 90.) Sumner charges that Wall
wrote the PIP in retaliation for his exercising rights under
the FMLA in April 2012 and March 2014, and in an attempt to
prepare to terminate Sumner because of his disability.
(Id. ¶¶ 84, 102.)
September 2, 2014, Wall and the Director of Associate
Relations, Kim Burch, presented Sumner with a memorandum
informing him that his position was being eliminated,
effective October 3, 2014, due to an effort to "improve
efficiency" and deduce costs." (Id. ¶
101.) Although the positions of "low service employees
with performance issues" were to be targeted for
elimination, (Id¶ 102), the memorandum to
Sumner did not reference any performance issues with Sumner.
Sumner alleges that MWHP illegally removed him based on his
age; his periods of FMLA leave; and, Wall's awareness of
his status as a "high risk" individual.