United States District Court, D. Maryland
Catherine C. Blake, United States District Judge.
Faresha Sims worked as a certified registered nurse
anesthetist ("CKNA") at University of Maryland
Medical Center ("UMMC") from April 8, 2013, until
August 17, 2015, and was supervised by Linda Goetz, Director
of Nurse Anesthetists. ECF 1, Compl, ¶¶ 4, 7. Sims
alleges that she was discriminated against based on her race
(black) and perceived disability, and that she was retaliated
against based on her protected activity. Now pending are the
University of Maryland Medical System Corporation
("UMMS") and Linda Goetz's (collectively,
"defendants") motion to strike Exhibit 1 to the
complaint (ECF 12) and partial motion to
dismiss (ECF 13). The motions are fully briefed
and ho oral argument is necessary. For the reasons stated
below, the court will grant the motion to strike, and will
deny the motion to dismiss.
AND PROCEDURAL HISTORY
Sims alleges ongoing discrimination and harassment dating
back to the beginning of her employment, the events
immediately leading to this, litigation began on June 18,
2015. On that day, Sims alleges that, while on approved
vacation leave, she was told by her supervisor, Linda Goetz,
to immediately undergo a discriminatory fitness for duty
("FFD") exam and drug testing. Compl. ¶¶
26-29. Goetz told Sims that she needed to take a drug test
because her "behavior had changed" and that she
would be fired if she refused. Id. ¶¶
28-29. Goetz did not provide any other explanation at the
time, although according to Sims, Goetz later asserted that
she believed that Sims was diverting drugs from the hospital
because she "works frequently." Id. ¶
36. Under threat of termination, Sims signed a form
consenting to the FFD exam, and urinated in a plastic cup
while being watched by an Employee Health Services staff
member. Id. ¶¶ 30-31. Dr. Melissa
Frisch, the medical director at Employee Health Services,
later declared Sims fit for duty, as the drug and alcohol
tests were negative and there were no findings of impairment.
Id. ¶¶ 51-52.
the drug test on June 18, 2015, Sims filed a race
discrimination complaint with the Executive Leadership
office. Id. ¶ 35. She alleges that four days
later, on June 22, 2015, she met with Employee Assistance
Program counselor Jan Buxton, who advised Sims to quit
"before they ruined Sims's career in retaliation for
her discrimination complaint." Id. ¶ 47.
Then, on June 24, 2015, Sims met with Lisa Rowen, Senior Vice
President of Patient Care Services and Chief Nursing Officer,
who "scolded" her for filing a race discrimination
complaint and threatened her that she would "experience
adversity for bringing" the complaint. Id.
¶¶ 56-57. On June 27, 2015, Sims escalated her race
discrimination complaint to Robert Chrencik, UMMS President
and CEO. Id. ¶ 60.
days later, Sims spoke with Detective Walter Brown, a UMMC
Investigator, on the phone, regarding "unusual
things" "happening to her away from work" and
forwarded him emails about her discrimination complaint.
Id. ¶¶ 61, 64. According to Sims, Brown
falsely told her he was a police officer. Id. ¶
61-62. Brown later wrote a memorandum about the call,
"falsely and maliciously attributing statements to Dr.
Sims that purportedly caused UMMC to question Sims's
ability to safely care for patients." Id.
¶ 65. Sims alleges that Brown and/or UMMC fabricated the
statements in the memorandum in retaliation for Sims filing a
discrimination complaint, and that Brown was promoted to a
higher position the same day that he issued the memorandum.
Id. ¶¶ 67, 69. Based on the memorandum,
UMMC suspended Sims from work, id. ¶ 76,
although Sims alleges that they did not take any of the steps
they, should have taken, including reporting Sims to the
Maryland Board of Nursing, if they actually had a
"good-faith belief that Dr. Sims may have a mental
impairment that might make her unable to safely care for
patients." Id. ¶ 73. Sims alleged the
suspension was retaliation and also a violation of the AD AAA
"for regarding her as disabled." Id.
¶ 77. According to Sims, she met with Human Resources
personnel Neddra King and Nicole Leyba on July 8, 2018, and
in the meeting, King conditioned Sims's return to work on
her withdrawing her discrimination complaint. Id.
¶¶ 78, 82.
referred Sims to the Employee Assistance Program
("EAP") on July 10, 2015. Id. ¶ 86.
On July 13, 2015, Sims sent UMMS an email informing them that
the EAP referral was harassment and retaliation, and stating
she would be "utilizing the assistance of EEOC."
Id. ¶¶ 88-89. According to Sims, the next
day, she was changed from paid to unpaid suspension.
Id. ¶ 90. On August 9, 2015, Sims was
terminated, as UMMC considered her refusal to go to EAP as a
resignation, id. ¶ 101-02, even though,
according to Sims, UMMC policy provides that an employee can
always refuse an EAP referral, id. ¶ 104. The
termination was upheld by Vice President of Human Resources
Paula Henderson, although she considered it to be a
"voluntary resignation." Id. ¶¶
Sims alleges that similarly situated CRNA's were treated
more favorably, than her. For example, a white male CRNA was
allowed to keep working despite being observed sleeping on
the job while administering anesthesia and having controlled
drugs and needles in his locker, id. ¶¶
125-32, and was only made to take an FFD exam after
anesthesiologists reported that he seemed unsafe,
id. ¶ 131. Another CRNA, a white female, was
reported by an anesthesiologist for mishandling narcotics and
behaving unethically to hide the fact that drugs were
missing, yet was not required to undergo an FFD or drug
testing, and continued providing patient care. Id.
complaint, Sims also alleges discriminatory failure to hire.
According to Sims, she requested "prior to hiring and
throughout her entire employment to be hired and trained in
Shock Trauma, but it never happened" even though Goetz
continued "hiring, transferring, and training non-black
CRNAs to work in Shock Trauma." Id.
¶¶ 157-58. Sims alleges several non-black CRN As
were allowed to train in Shock Trauma even though they had
less experience and were hired after Dr. Sims. Id.
¶ 160. According to Sims, UMMC alleged that Sims was not
allowed to transfer or train in Shock Trauma because she was
hired for General Operation Rooms ("GOR"), but
other non-black CRNA's hired to work in GOR were
transferred to and/or trained for Shock Trauma. Id.
¶ 161. Sims alleges that there were no black full-time
nonmanagerial CRNAs hired, trained', or transferred to
work in Shock Trauma during Sims's employment.
Id. ¶ 164.
alleges that Goetz and University of Maryland Medical System
Corporation ("UMMS") discriminated against her
based on race, in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., and
Section 1981, 42 U.S.C. § 1981, by failing to hire or
train her in shock trauma (Count I); by making her take an
FFD exam and drug test (Count II); and by subjecting her to a
hostile work environment (Count VI). Sims also alleges that UMMS
violated the Americans with Disabilities Act
("ADA") by subjecting her to the medical
examination and disability-related inquiries (Count III), and
by harassing and discriminating against her based on her
perceived disability (Count IV). Lastly, she alleges that
UMMS, Rowen, and Goetz retaliated against her in violation of
Title VII (as to UMMS) and § 1981 (as to UMMS, Rowen,
and Goetz) (Count V).
defendants seek to dismiss UMMS from the action, and to dismiss
Counts I, II, and VI of the complaint for failure to state a
claim. They also seek to strike Exhibit 1 to the complaint,
which is the Baltimore City Community Relations
Commission's written findings of probable cause.
Federal Rule of Civil Procedure 12(f), "[t]he court may
strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter." "Rule 12(f) motions are generally viewed
with disfavor 'because striking a portion of a pleading
is a drastic remedy and because it is often sought by the
movant simply as a dilatory tactic."' Waste
Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th
survive a motion to dismiss, the factual allegations of a
complaint "must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact)." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). "To
satisfy this standard, a plaintiff need not
'forecast' evidence sufficient to prove the elements
of the claim. However, the complaint must allege sufficient
facts to establish those elements." Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation
omitted). "Thus, while a plaintiff does not need to
demonstrate in a complaint that the right to relief is
'probable,' the complaint must advance the plaintiffs
claim 'across the line from conceivable to
plausible."'. Id. (quoting
Twombly, 550 U.S. at 570). Additionally, although
courts "must view the facts alleged in the light most
favorable to the plaintiff," they "will not accept
'legal conclusions couched as facts or unwarranted
inferences, unreasonable conclusions, or arguments'"
in deciding whether a case should survive a motion to
dismiss. U.S. ex rel Nathan v. Takeda Pharm. North Am.,
Inc., 707 F.3d 451, 455 (4th Cir. 2013) (quoting Wag
More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir.
order to survive a motion to dismiss under Title VII or under
§ 1981, the plaintiff must plausibly allege facts that
satisfy the elements of the cause of action under Title VII
or § 1981, but she need not make out a prima
facie case. McCleary-Evans v. Md. Dep't of
Tramp., 780 F.3d 582, 585 (4th Cir. 2015) (Title VII);
Woods v. City of Greensboro, 855 F.3d 639, 648 (4th
Cir. 2017) (Section 1981).