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Blaise v. Harris

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

March 6, 2017

DR. DIE K. BLAISE, Plaintiff,
v.
DR. SANDRA HARRIS and VIBRA HOSPITAL OF RICHMOND, INC., Defendants.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge.

         This matter is before the Court on the MOTION IN SUPPORT OF MOTION TO DISMISS THE SECOND COMPLAINT (ECF No. 29) . For the reasons set forth below, the MOTION IN SUPPORT OF MOTION TO DISMISS THE SECOND COMPLAINT (ECF No. 29) will be granted.

         BACKGROUND

         Plaintiff, Dr. Die K. Blaise ("Blaise"), pro se, filed a four count complaint ("First Complaint") against Dr. Sandra Harris ("Harris") and Vibra Hospital ("Vibra") in which he asserted (1) First Cause of Action: Harassments; (2) Second Cause of Action: Race, Color and National Origin; (3) Third Cause of Action: Disability; and (4) Fourth Cause of Action: Vibra Hospital of Richmond Violates its own Policy. Vibra and Harris moved to dismiss the First Complaint and the motion was granted (ORDER, ECF No. 22) . That ORDER provided:

To the extent that count one, "Harassments, " seeks relief under Title VII, that claim is dismissed with prejudice. To the extent that count one, "Harassments, " seeks relief under 42 § U.S.C. 1981, that claim is dismissed without prejudice. To the extent that count two, "Race, Color, and National Origin, " seeks relief under Title VII, that claim is dismissed with prejudice. To the extent that count two, "Race, Color, and National Origin, " seeks relief under 42 U.S.C. § 1981, that claim is dismissed without prejudice. To the extent that count two, "Race, Color, and National Origin, " seeks relief under the Equal Pay Act, that claim is dismissed with prejudice. To the extent that count three, "Disability, " seeks relief under the Americans With Disabilities Act, that claim is dismissed with prejudice. To the extent that count four, "Vibra Hospital of Richmond Violates its own policies, " seeks relief for wrongful termination, that claim is dismissed with prejudice.
If Harris chooses to refile the claims which have been dismissed without prejudice (his 42 U.S.C. § 1981 harassment and discrimination claims) he must do so by September 9, 2016.

         Thereafter, Blaise filed a new five count complaint ("Second Complaint") against Harris and Vibra alleging: FIRST CAUSE OF ACTION UNDER 42 USC 1981 (WRONGFUL TERMINATION (HARASSMENTS)); SECOND CAUSE OF ACTION UNDER 42 USC 1981 (WRONGFUL TERMINATION (Discrimination-Race, Color and National Origin)); THIRD CAUSE OF ACTION UNDER 42 USC 1981 (DEFAMATION); FOURTH CAUSE OF ACTION UNDER 42 USC 1981 (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS); FIFTH CAUSE OF ACTION UNDER 42 USC 1981 (NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS). Harris and Vibra have moved to dismiss the Second Complaint. Although all five counts (Blaise has labeled them "Causes of Action") purported to arise by virtue of 42 U.S.C. § 1981, only the first two are federal law claims. The last three are state law claims.[1]

         FACTS

         Blaise is an African-American pharmacist. (Second Compl. ¶ 1.) At the time of his employment, Blaise had a Bachelor of Sciences in Pharmacy and a Doctor of Pharmacy degree. (Id. ¶ 2.) He also alleges twelve years of relevant work experience, including extensive training in clinical pharmacy. (Id.)

         Kindred Hospital hired Blaise through PharMerica, Inc. on May 20, 2013 in Richmond, Virginia. (Id. ¶ 1.) In the first three months of his employment, Blaise received training and positive performance evaluations in the use of the hospital's medication order entry software. (Id.)

         On September 1, 2013, Vibra acquired Kindred Hospital, including its pharmacy. (Id. ¶ 12.) Vibra replaced the existing medication order entry software with HMS version 1.0 (UHMS"). (Id.) HMS differed from the old software because it used paper order entry and a paper Medication Administration Record system rather than electronic order entry. (Id.) Blaise alleges that all pharmacists received two weeks of intensive training in HMS except the one in which he was employed. According to Blaise, he received only fifteen minutes of instruction. (Id.) Consequently, says Blaise, he learned the program on his own and took longer to process medication orders than the fully-trained pharmacists. (Id.)

         Blaise worked under Harris, the Director of Pharmacy and a white woman, until his employment terminated on December 18, 2013. (See Id. ¶¶ 1, 14.) After Vibra rolled out HMS, Harris hired three part-time pharmacists who received two weeks of training on HMS. (Id. ¶ 20.) Blaise alleges that Harris started scheduling those three pharmacists more often than he was scheduled and reduced Blaise's hours. (Id.) Blaise made medication dispensation errors in HMS from August through December. (See id. ¶ 9.) He claims that several clinical staff made medication errors but that he was the only staff member who received disciplinary action. (Id.)

         Blaise alleges that, from August through December 2013, Harris created a hostile work environment. (Second Compl. ¶ 14.) Specifically, he alleges that Harris routinely asked him to leave at the end of his shift regardless of whether he completed his work for the day. (Id.) He further alleges that Harris called him at home to request that he close the pharmacy, and then reprimanded him for uncompleted tasks the following day. (Id.) Finally, Blaise alleges that Harris made "offensive remarks'7 and "frequent phone call [sic] threat [s] [with] respect to overtime." (Id.) According to Blaise, Harris treated him this way due to his race and rumors that he was HIV positive. (Id. ¶¶ 3, 21.) He alleges that Harris did not treat Dr. Robert Swendrznski, a white pharmacist also working under Harris, the same way. (Id. ¶ 15.) These conclusory allegations are the sole support for the harassment and discrimination claims.

         Vibra terminated Blaise's employment on December 18, 2013. (Id. ΒΆ 1.) That was done, according to the Second Complaint, in retaliation for (1) rumors that Blaise had HIV and (2) the threat Blaise ...


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