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Ofoche v. Apogee Medical Group, Virginia, P.C.

United States District Court, W.D. Virginia, Danville Division

January 17, 2019

CHIJIOKE KINGSLEY OFOCHE, MD, Plaintiff,
v.
APOGEE MEDICAL GROUP, VIRGINIA, P.C., and PHC-MARTINSVILLE, INC., d/b/a SOVAH HEALTH MARTINSVILLE MARTINSVILLE CI, d/b/a MEMORIAL HOSPITAL OF MARTINSVILLE AND HENRY COUNTY, Defendants.

          MEMORANDUM OPINION

          JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants Apogee Medical Group (“Apogee”) and PHC-Martinsville's (“PHC-Martinsville” or “Martinsville Memorial”) Motions to Dismiss Plaintiff's First Amended Complaint [ECF Nos. 44 & 46]. After full briefing of the issues, I held oral argument on the motions on January 3, 2019. I have reviewed the arguments of the parties, the applicable law, and the relevant parts of the Record. For the reasons stated herein, the Motions to Dismiss will be granted.

         I. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND[1]

         The relevant allegations are set forth in my Opinion dated September 20, 2018 [ECF No. 38] and need not be repeated here.

         With regard to the Amended Complaint, the only relevant[2] factual addition was the identity of an alleged comparator, Dr. Isernia. (See Am. Comp. ¶¶ 64-68 [ECF No. 43].) According to Plaintiff, Dr. Isernia, who is both Caucasian and American (and is not present in the country by virtue of an H-1B visa), received favorable treatment and work assignments that are not available to any other hospitalists (who are not Caucasian or American, and who are all present in the country by virtue of an H-1B visa).[3] Plaintiff alleges that he is jointly employed by Apogee and PHC-Martinsville, Dr. Isernia is employed solely by PHC-Martinsville, and all other hospitalists are “employed by Apogee and working at” PHC-Martinsville. (Id. ¶¶ 24, 60, 64.)

         After receipt of the Amended Complaint, Defendants filed their respective motions to dismiss on October 12 & 18. Plaintiff filed his responses on October 31, and Defendants replied on November 7. I heard oral arguments on the motions on January 3, so the matter is ripe for disposition.

         II. STANDARD OF REVIEW

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Iqbal, 556 U.S. at 678. In determining facial plausibility, the court must accept all factual allegations in the complaint as true. Id. The Complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” and sufficient “[f]actual allegations . . . to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (internal quotation marks omitted). Therefore, the Complaint must “allege facts sufficient to state all the elements of [the] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ” a pleading that merely offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

         III. DISCUSSION

         Defendants' argument essentially boils down to their claim that Plaintiff's additional factual allegations do not save the defects I identified in my original opinion. I am constrained to agree.

         Title VII makes it “an unlawful employment practice . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Under both Title VII and § 1981, to succeed on his discrimination claims, Plaintiff must demonstrate: “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010); see also Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) (evaluating a § 1981 racial discrimination claim and a Title VII racial discrimination claim under the same prima facie framework); Holder v. City of Raleigh, 867 F, 2d 823, 828 (4th Cir. 1989) (“Our analysis with respect to Title VII also governs plaintiff's claims under . . . [§] 1983.”).

         Although it is not required, a plaintiff may utilize a comparator to prove his case. See Bryant v. Aiken Regional Medical Centers, Inc., 333 F.3d 536, 545 (4th Cir. 2003) (noting that a plaintiff “is not required as a matter of law to point to a similarly situated white comparator in order to succeed on a race discrimination claim”). When a plaintiff relies on a comparator, however, “the validity of [his] prima facie case depends upon whether that comparator is indeed similarly situated.” Haywood v. Locke, 387 Fed.Appx. 355, 359 (4th Cir. 2010) (per curiam) (unpublished) (citing Tx. Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981)). Showing that a comparator is “similarly situated” can include showing that the alleged comparators “dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.'” Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992) (quoted in Haywood, 387 Fed.Appx. at 359).

         Here, Plaintiff's allegations are insufficient to show that Dr. Isernia is a valid comparator. First, Plaintiff alleges that he was subject to employment by both Apogee and PHC-Martinsville, while Dr. Isernia was employed only by PHC-Martinsville. He has not alleged to whom Dr. Isernia reported, nor has he alleged that he and Dr. Isernia shared the same supervisor(s). All he alleges is that Dr. Isernia was not reprimanded for coming in late or leaving early. He does not allege that he made any similar complaints about the patient loads. Accordingly, aside from the status of hospitalist, Plaintiff has failed to allege any other similarities between himself and Dr. Isernia.

         More to the point, however, Dr. Isernia is not similar to Plaintiff on the ultimately relevant point: his immigration status. As I concluded in my original opinion, Plaintiff's “allegations establish discrimination, if at all, on the basis of his immigration status.” (See Mem. Op. pg. 6, Sept. 20, 2018 [ECF No. 38].) Rather than come forward with a white hospitalist who is present in the country on an H-1B visa, [4] thereby suggesting that race or national origin was in fact themotivating factor, Plaintiff presents a white, American hospitalist who is not a foreign national. His evidence does not ...


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