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Sumner v. Mary Washington Healthcare Physicians

United States District Court, E.D. Virginia, Richmond Division

September 30, 2016

DILLARD L. SUMNER, JR., Plaintiff,



         This matter comes before the Court on the Partial Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)[1] 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.[2] 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.

         I. Standard of Review

         "A 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 (2009).

         The 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 omitted).

         II. Procedural and Factual Background

         A. Summary of Allegations in the Complaint[3]

         1. Sumner and Wall's Working Relationship

         In July 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. (Id.¶ 52).

         The 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. ¶ 59.)

         "Beginning 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. ¶ 67.)

         Wall "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.)

         2. Sumner's 2012 and 2014 Leave for Diabetes-Related Surgeries

         Sumner 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.

         On 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.)

         Just 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.)

         During 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. ¶ 75.)

         The 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 recovery.

         3. Return from 2014 FMLA Leave

         On 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.[4] 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.

         On 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.

         In the 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.)

         On 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.

         B. Proce ...

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