United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE
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
STATEMENT OF FACTS AND PROCEDURAL
relevant allegations are set forth in my Opinion dated
September 20, 2018 [ECF No. 38] and need not be repeated
regard to the Amended Complaint, the only
relevant 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). 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,
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.
STANDARD OF REVIEW
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.
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.
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 . . .
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).
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.
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,  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 ...