Harvey v. Ozark Community Hospital (Och) Health System et al

MEMORANDUM BRIEF in Support of 10 MOTION to Dismiss for Failure to State a Claim

W.D. Ark.December 16, 2016

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION JUDITH A. HARVEY PLAINTIFF v. Case No. 5:16-cv-05314-PKH OZARK COMMUNITY HOSPITAL (OCH) HEALTH SYSTEM; PAUL TAYLOR, CEO of OCH, in his official capacity only; and MARK GLOVER, Psychologist, in his official capacity only DEFENDANTS BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Defendants Ozarks Community Hospital, Inc.1 (“OCH”), Paul Taylor, and Mark Glover have moved the Court to dismiss Plaintiff Judith A. Harvey’s Complaint pursuant to Rule 12(b)(6). Plaintiff has failed to plead exhaustion of her administrative remedies and, in fact, has failed to exhaust her administrative remedies, so her Complaint should be dismissed with prejudice. Alternatively, Mr. Taylor and Dr. Glover should be dismissed because individuals are not subject to liability under the Age Discrimination in Employment Act, and OCH should be dismissed for insufficient service of process pursuant to Rule 12(b)(5). I. Relevant Background Plaintiff Judith A. Harvey filed her pro se Complaint on November 1, 2016. Doc. No. 1. In it, she alleges a violation of the Age Discrimination in Employment Act (“ADEA”) for alleged age discrimination in the termination of her employment on June 11, 2015. Id. at pp. 3, 6, 11; Doc. No. 1-1 pp. 3-4. 1 Ozarks Community Hospital, Inc. is misnamed in the Complaint as “Ozark Community Hospital (OCH) Health System.” Case 5:16-cv-05314-PKH Document 11 Filed 12/16/16 Page 1 of 11 PageID #: 43 -2- She names as defendants “Ozark Community Hospital (OCH) Health System,” Paul Taylor, CEO, and Mark Glover, Staff Psychologist. Doc. No. at pp. 2-4. By Order dated November 2, 2016, the Court determined that the individuals could not be sued under the ADEA in their individual capacities. Doc. No. 5. Thus, Mr. Taylor and Dr. Glover remain as defendants only in their official capacities. Id. With respect to exhaustion of her administrative remedies, Plaintiff alleges that she received a Notice of Right to Sue from the Equal Employment Opportunity Commission (“EEOC”), and she attached a copy of the notice to her Complaint. Doc. No. 1-1 at pp. 5, 7-8. She makes no allegations regarding the filing of her charge, however, or whether that filing was timely. Doc. No. 1-1 at p. 5, ¶ IV. According to the EEOC’s records, Plaintiff first contacted the EEOC by letter dated November 17, 2015. See Exhibit A (attached). In the five-page letter, Plaintiff describes numerous issues that happened while she was employed at OCH, but she does not ask the EEOC to take any action. Id. The next document is an EEOC “Inquiry Form” that Plaintiff dated November 12, 2015,2 and which is stamped received by the EEOC on November 23, 2015. See Exhibit B (attached). The form thanks Plaintiff for contacting the EEOC and says: “We are collecting this preliminary information to see if your situation is covered by the laws enforced by EEOC. When you complete and send us this form, it starts our review of your concerns to see how we can best help you.” Id. at p. 1. The form contains basic information about Plaintiff and OCH, but does not detail any allegations of discrimination. See id. Notably, the form states: REMEMBER, this form is not a charge of discrimination, but it will help us see if your situation is covered by the laws we enforce. A charge of employment discrimination must be filed within the strict time limits imposed by law, 2 November 12 is the date that appears on the document even though the form appears to be a follow up to her November 17 letter. Case 5:16-cv-05314-PKH Document 11 Filed 12/16/16 Page 2 of 11 PageID #: 44 -3- generally within 300 days of the actions against you in most states, but within 180 days of the actions against you if the action took place in North Carolina, Georgia, Alabama, Mississippi and Arkansas. If you decide to file a charge, you are encouraged to do so as soon as possible. Id. (emphasis in original). The next document is a letter dated December 1, 2015, from an EEOC investigator to Plaintiff. See Exhibit C (attached). It states: “Your correspondence concerning allegations of employment discrimination by the respondent named above has been reviewed. The information you gave us is not enough to determine how we should handle this case. More information is needed before we can continue. . . . Please call us as soon as possible.” Id. The letter also reminds Plaintiff of the need to file a charge “within the time limits imposed by the law.” Id. Plaintiff responded to that letter in writing on December 16, 2015, asking the EEOC to contact her to schedule an interview. See Exhibit D (attached). An intake interview was finally conducted on December 21, 2015. See Exhibit E (attached). On the same day, the EEOC sent OCH notice of an unperfected charge. See Exhibit F (attached). Plaintiff eventually submitted a charge, and it was marked “received” by the EEOC on January 19, 2016. See Exhibit G (attached). There are multiple dates on the charge. Plaintiff signed it on December 24, 2015, January 12, 2016, and January 13, 2016. Id. Thereafter, on January 27, 2016, the EEOC sent OCH notice of Plaintiff’s charge filing. See Exhibit H (attached). On these allegations, Plaintiff’s Complaint must be dismissed. II. Analysis and Authorities A. The 12(b)(6) Standard of Review “Dismissal is proper where the plaintiffs’ complaint fails to state a claim upon which relief can be granted.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) Case 5:16-cv-05314-PKH Document 11 Filed 12/16/16 Page 3 of 11 PageID #: 45 -4- (citing Fed. R. Civ. P. 12(b)(6)). “In considering a motion to dismiss, courts accept the plaintiff’s factual allegations as true, but reject conclusory allegations of law and unwarranted inferences.” Silver v. H&R Block, 105 F.3d 394, 397 (8th Cir. 1997). If the plaintiff can prove “no set of facts in support of his claim which would entitle him to relief,” then dismissal is proper. See Rucci v. City of Pacific, 327 F.3d 651, 652 (8th Cir. 2003). Although pro se pleadings are held “to less stringent standards than formal pleadings drafted by lawyers . . . such liberal pleading standards apply only to factual allegations. To state a claim for relief, a pro se pleading must set forth allegations sufficient to state a claim as a matter of law and must not contain merely conclusory allegations.” Hill v. Select Specialty Hosp. Little Rock, Inc., No. 4:11CV00453 SWW, 2011 U.S. Dist. LEXIS 124909, at *3 (E.D. Ark. Oct. 27, 2011) (internal quotations and citation omitted). Normally, when a motion to dismiss presents matters outside of the pleadings, the motion should be treated as one for summary judgment, but this is not always the case. See Rucci, 327 F.3d at 652 (stating that a plaintiff cannot defeat a motion to dismiss by not attaching statements to his complaint when those statements form the entire basis for his lawsuit). “[M]atters of public and administrative record referenced in the complaint may also be taken into account.” Deerbrook Pavilion, LLC v. Shalala, 235 F.3d 1100, 1102 (8th Cir. 2000). Moreover, “documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [its] claim.” Moses.com Securities, Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1063 n.3 (8th Cir. 2005) (quoting Venture Associates Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)) (alteration in original). In considering a similar 12(b)(6) motion, Judge Baker in the Eastern District recently said: Case 5:16-cv-05314-PKH Document 11 Filed 12/16/16 Page 4 of 11 PageID #: 46 -5- The district court “may. . . consider some public records, materials that do not contradict the complaint or materials that are ‘necessarily embraced by the pleadings.’” Accordingly, this Court may consider the charges of discrimination and documents filed with the EEOC in ruling on [the defendant’s] Rule 12(b)(6) motion to dismiss. See Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002) (determining that “an EEOC charge is part of the public record, and thus the motion to dismiss was not converted to one for summary judgment by the attachment of a copy of the EEOC charge.”). Wilkes v. Nucor-Yamato Steel Co., No. 3:14-cv-00224-KGB, 2015 U.S. Dist. LEXIS 131241, at *11-12 (E.D. Ark. Sept. 29, 2015) (citations omitted). Defendants’ motion is therefore properly considered as a motion to dismiss under Rule 12(b)(6). B. Plaintiff Failed to Exhaust Her Administrative Remedies. The ADEA requires a plaintiff to exhaust her administrative remedies prior to filing suit. 29 U.S.C. § 626(d). More specifically, a plaintiff must file a charge of discrimination with the EEOC within 180 days of the alleged unlawful practice. See 29 U.S.C. § 626(d)(1). “Exhaustion of administrative remedies is a condition precedent to the filing of an action under the ADEA.” Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 523 (8th Cir. 2010). The basis for Plaintiff’s Complaint and EEOC charge is the termination of her employment on June 11, 2015. See Doc. No. 1 at p. 9; Exh. G. This made her 180-day deadline to file an EEOC charge December 9, 2015. Plaintiff’s charge, however, was marked “received” by the EEOC over a month late on January 19, 2016. Exh. A. There are multiple dates on the charge - Plaintiff signed the document on December 24, 2015, January 12, 2016, and January 13, 2016 - but none of those dates is within the 180-day period. Plaintiff’s EEOC charge was therefore untimely. While it is possible for earlier documents submitted to the EEOC to be deemed a timely charge, nothing Plaintiff submitted to the EEOC suffices here. Case 5:16-cv-05314-PKH Document 11 Filed 12/16/16 Page 5 of 11 PageID #: 47 -6- Under EEOC regulations, a charge is sufficient when it is “sufficiently precise to identify the parties, and to describe generally the action or practices complained of,” and a charge “may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein.” 29 C.F.R. § 1601.12(b); see also Edelman v. Lynchburg College, 535 U.S. 106 (2002). In Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), the Supreme Court considered whether an intake questionnaire could satisfy the charge- filing requirement under the ADEA for purposes of determining timeliness. After noting the need to define a charge in a way that allows the EEOC to separate information requests from enforcement requests, the Holowecki Court held that, in addition to the information required by the EEOC regulations, “if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.” In other words, “the filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes . . . .” Wilkes, 2015 U.S. Dist. LEXIS 131241, at *17 (citations omitted). None of Plaintiff’s earlier - and potentially timely - submissions to the EEOC meet Holowecki’s request-to-act requirement. First was Plaintiff’s November 17, 2015, letter to the EEOC. Exh. A. Nowhere in the letter does Plaintiff ask the EEOC to do anything, let alone express an intent to file a charge. Second was the Inquiry Form received by the EEOC on November 23, 2015. Exh. B. Again, there is no request to act. Indeed, the form expressly states that it is “not a charge,” advises Plaintiff of the deadline to file a charge, and urges her to move quickly. Critically, the EEOC did not consider Plaintiff’s November submissions to constitute a charge. The EEOC did not give OCH the required notice of an unperfected charge until December 21 (after Plaintiff’s intake interview), and in its December 1 letter to Plaintiff, the agency responded to her earlier submissions by stating that the agency needed more information before it could proceed. Exh. C. The letter reminded Plaintiff of “time limits” and urged her to Case 5:16-cv-05314-PKH Document 11 Filed 12/16/16 Page 6 of 11 PageID #: 48 -7- move quickly (again). Plaintiff did not respond until December 16, eight days after her filing deadline. Exh. D. She did not initiate the charge process until December 21, thirteen days after her filing deadline. Exhs. E & F. Plaintiff filed her EEOC charge too late and, therefore, failed to exhaust her administrative remedies prior to filing suit. C. Plaintiff Failed to Plead Exhaustion of Her Administrative Remedies. Even if the Court were to somehow deem Plaintiff’s EEOC charge timely or reject Defendant’s argument for some other reason, her Complaint fails because she did not actually plead exhaustion of her administrative remedies, which is a condition precedent to her lawsuit. Pursuant to Rule 9(c) of the Federal Rules of Civil Procedure, conditions precedent must be pled. Here, Plaintiff failed to plead proper exhaustion of her administrative remedies. In her form complaint, Section IV is entitled “Exhaustion of Federal Administrative Remedies.” Doc. No. 1-1 at p. 5. Subsection A states, “It is my best recollection that I filed a charge with the Equal Employment Opportunity Commission or my Equal Employment Opportunity counselor regarding the defendant’s alleged discriminatory conduct on (date),” followed by a blank. Plaintiff left the blank empty and pled nothing regarding the timing of the filing of her EEOC charge. Plaintiff’s complaint should therefore be dismissed for failure to plead satisfaction of all conditions precedent. D. Alternatively, the Individual Defendants are Not Proper Parties. Although Mr. Taylor and Dr. Glover remain in the case only in their “official capacities,” the claims against them are unnecessarily duplicative of the claims against OCH, and they should be dismissed completely. Case 5:16-cv-05314-PKH Document 11 Filed 12/16/16 Page 7 of 11 PageID #: 49 -8- Numerous courts have held that “official-capacity claims under the ADEA against individuals as supervising agents are duplicative where the Plaintiff has named both the employer and the individual.” Hopkins v. Bacone Coll., No. CIV-16-166-SPS, 2016 U.S. Dist. LEXIS 154736, at *8 (E.D. Okla. Nov. 8, 2016); see also Thanongsinh v. Bd. of Educ., 462 F.3d 762, 772 n.7 (7th Cir. 2006); Falcon v. City Univ. of N.Y., No. 15-cv-3421 (ADS)(ARL), 2016 U.S. Dist. LEXIS 92396 at *19 (E.D.N.Y. July 15, 2016); Skotnicki v. Bd. of Trs., No. 2:11-CV- 03497-RDP, 2014 U.S. Dist. LEXIS 109614, at *17 (N.D. Ala. Aug. 8, 2014); Cross v. Suffolk City Sch. Bd., No. 2:11cv88, 2011 U.S. Dist. LEXIS 75970, at *12 (E.D. Va. July 14, 2011); Cleveland v. KFC Nat’l Mgmt. Co., 948 F. Supp. 62, 66 (N.D. Ga. 1996). In other words, the official-capacity claims against Mr. Taylor and Dr. Glover are identical to the claim against OCH, so there is no reason for Mr. Taylor and Dr. Glover to be listed as separate defendants. The individual defendants should be dismissed completely. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”); see also Hopkins, 2016 U.S. Dist. LEXIS 154736, at *9 (dismissing official- capacity claim); Falcon, 2016 U.S. Dist. LEXIS 92396, at *19 (same); Skotnicki, 2014 U.S. Dist. LEXIS 109614, at *17 (same); Perrigo v. Unified School District No. 500, No. 2:13-2363-EFM- DJW, 2014 U.S. Dist. LEXIS 61112, at *4 (D. Kan. May 2, 2014) (dismissing individual named in her official capacity and stating “[w]hen a plaintiff names as defendants both the employer and an employee in his or her official capacity, the claims against the employee merge with the claims against the employer.”). Case 5:16-cv-05314-PKH Document 11 Filed 12/16/16 Page 8 of 11 PageID #: 50 -9- E. Alternatively, Plaintiff Failed to Effect Proper Service of Process on OCH. Upon motion by a defendant, a court may dismiss an action for insufficiency of service of process. See Fed. R. Civ. P. 12(b)(5). The plaintiff has the burden of proof to establish proper service of process. See, e.g., Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995). “Proper service of process is fundamental and significant because ‘[i]f a defendant is improperly served, a federal court lacks jurisdiction over the defendant.’” Hart v. Coffee, No. 07-5088, 2007 U.S. Dist. LEXIS 100272, at *3 (W.D. Ark. Oct. 30, 2007) (quoting Printed Media Services, Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993)). Rule 4 of the Federal Rules of Civil Procedure sets forth the methods for a plaintiff to serve process on a corporate defendant and also provides a method for a defendant to waive service. See Fed. R. Civ. P. 4(h) and 4(d). Because Plaintiff did not request that OCH waive process and OCH has not consented to waive service, Plaintiff must effect formal service of process, which she has not done. Service upon a corporation such as OCH may be effected by delivering a copy of the summons and complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 4(h)(1). Additionally, service may be effectuated on a corporation in any manner authorized by state law. Id. (incorporating Fed. R. Civ. P. 4(e)(1)). Under Arkansas law, a corporation may be served “by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.” Ark. R. Civ. P. 4(d)(5). “[G]enerally speaking, the papers cannot be left Case 5:16-cv-05314-PKH Document 11 Filed 12/16/16 Page 9 of 11 PageID #: 51 -10- with someone at the officer’s or agent’s office or place of business.” 4A Charles Alan Wright et al., Federal Practice and Procedure § 1101 (3d ed. 2015). Here, the summons was not addressed to “an officer, managing or general agent, or other agent authorized to receive service.” It was simply addressed to “Ozark Community Hospital Health System at Ozarks Community Hospital, Inc., 1101 Jackson Street S.W., Gravette, AR 72736.” See Exhibit I (attached); see also Order, Doc. No. 5 (directing the U.S. Marshal to serve “Ozark Community Hospital Health System” at “Ozarks Community Hospital, Inc.,3 1101 Jackson Street S.W., Gravette, AR 72736.”).4 This is not service on a proper officer or agent. See, e.g., Amnay v. Del Labs, 117 F. Supp. 2d 283, 286 (E.D.N.Y. 2000) (attempting service on corporation by leaving summons and complaint with receptionist not effective); Battie v. Freeman Decorating, No. 01-2282, 2001 U.S. Dist. LEXIS 18262, at *2 (E.D. La. Oct. 31, 2001) (leaving documents at the front desk not proper service). Consequently, Plaintiff’s attempted service on OCH was insufficient, and the claims against it should be dismissed pursuant to Rule 12(b)(5). III. Conclusion Plaintiff’s Complaint should be dismissed with prejudice because Plaintiff did not file a timely EEOC charge and, thus, failed to exhaust her administrative remedies. Moreover, she failed to actually plead proper exhaustion of her administrative remedies in her Complaint. 3 It is unclear where the Court obtained OCH’s proper name, as it does not appear in any of the Plaintiff’s submissions. 4 The Court’s Order also directed service on the individuals at OCH’s address. Under both Arkansas and federal procedure, “[l]eaving the summons and complaint at a place other than the defendant’s home, e.g., his or her office or place of employment, is not sufficient.” David Newbern et al., Arkansas Civil Practice and Procedure, § 12:6, p. 325 (5th ed. 2010); see also 1 James Wm. Moore et al., Moore’s Federal Practice § 4.92 (2016) (“[D]elivering process at defendant’s place of business is improper.”). Thus, to the extent the individuals are not otherwise dismissed, they should be dismissed for insufficient service of process as well. Case 5:16-cv-05314-PKH Document 11 Filed 12/16/16 Page 10 of 11 PageID #: 52 -11- Alternatively, her Complaint against the individual defendants should be dismissed as duplicative and her Complaint against OCH dismissed for insufficient service of process. /s/ Eva C. Madison Eva C. Madison (98183) Brook A. Brewer (2006152) Littler Mendelson, P.C. 217 E. Dickson St., Suite 204 Fayetteville, Arkansas 72701 Telephone: 479.582.6100 Fax: 479.582.6111 emadison@littler.com bbrewer@littler.com Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that on December 16, 2016, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing. I further certify that on this same date I mailed a copy of the foregoing document via U.S. Postal Service to the following non CM/ECF participant: Judith A. Harvey 13404 Indian Bow Circle Garfield, AR 72732 /s/ Eva C. 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