Sims v. University of Maryland Medical System Corp.

          MEMORANDUM

          Catherine C. Blake, United States District Judge.

         Dr. 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")^[1] motion to strike Exhibit 1 to the complaint (ECF 12) and partial motion to dismiss^[2] (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.

         FACTS AND PROCEDURAL HISTORY

         Although 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.^[3] Dr. Melissa Frisch, the medical director at Employee Health Services, later declared Sims fit for duty, as the drug and alcohol tests were negative^[4] and there were no findings of impairment. Id. ¶¶ 51-52.^[5]

         After 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.

         A few 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.

         UMMC referred Sims to the Employee Assistance Program ("EAP") on July 10, 2015. Id. ¶ 86. On July 13, 2015, Sims sent UMMS^[6] 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. ¶¶ 113, 115.

         Dr. 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.^[7] 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. ¶ 150.

         In her 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.

         Sims 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).^[8] 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).

         The defendants seek to dismiss UMMS^[9] 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.

         STANDARD OF REVIEW

         Motion to Strike:

         Per 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 Cir. 2001).

         Motion to Dismiss:

         To 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. 2012)).

         In 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).

         ANALYSIS

         Motion ...