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Shapiro v. Howard University

United States District Court, District of Columbia

September 30, 2019

DANIELLE SHAPIRO, Plaintiff,
v.
HOWARD UNIVERSITY, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          TANYA S. CHUTKAN, UNITED STATES DISTRICT JUDGE

         Plaintiff Danielle Shapiro, proceeding pro se, brings this employment discrimination action against Howard University and Howard University Hospital (collectively, “Howard”). This matter is before the court on Defendants' Motion to Dismiss (ECF No. 11) and supporting memorandum (ECF No. 11-1, “Def.'s Mem.”).

         Under Federal Rule of Civil Procedure 8, a plaintiff need only provide a “short and plain statement of [her] claim showing that [she] is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), that “give[s] the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). Here, Plaintiff's Complaint (ECF No. 1, “Compl.”) is neither short nor plain. It is a seven-page preprinted form titled “Complaint for Employment Discrimination” with a 12-page typewritten attachment titled “Complaint for Employment Discrimination - Statement of Facts and Statement of Claim” and three exhibits: Charge of Discrimination (EEOC Charge No. 570-2017-01490), a declaration in support of the EEOC charge, and EEOC's Dismissal and Notice of Rights.[1] The court must consider more than the complaint, however. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (noting the district court's obligation “to consider a pro se litigant's complaint ‘in light of' all filings, including filings responsive to a motion to dismiss”); Schnitzler v. United States, 761 F.3d 33, 38 (D.C. Cir. 2014) (noting “the district court's obligation to construe a pro se plaintiff's filings liberally, and to consider his filings as a whole before dismissing a complaint”). Also before the court are Plaintiff's 245-page opposition (ECF No. 14, “Pl.'s Opp'n”)[2] consisting of a 42-page pleading and 39 exhibits totaling 203 pages, and her Surreply (ECF No. 17).[3] While Plaintiff's submissions are not models of clarity, they are not “an unintelligible rambling narrative of allegations, ” as Defendants characterize them. Def.'s Mem. at 4; see id. at 12.

         Having reviewed the parties' submissions, the court concludes that Plaintiff fails to state disparate treatment, hostile work environment, constructive discharge and ADA claims upon which relief can be granted. Because she does adequately allege a retaliation claim, the court GRANTS Howard's motion to dismiss in part and DENIES it in part.

         I. BACKGROUND

         A. Family Medicine Residency Program

         Howard offers postgraduate training to medical residents, the standards for which the Accreditation Council for Graduate Medical Education (“ACGME”) establishes. Def.'s Mem. at 3; see Compl ¶ 11. One such training program is Howard's Family Medicine Residency Program. “[R]esidents are to learn through experiential training, informal feedback, coaching and counseling meetings, written evaluations . . ., and through formal summative feedback, which is known as Milestones Evaluations/Biannual Program Director's Meeting.” Compl. ¶ 11. A resident must achieve “competency in: professionalism; and interpersonal and communication skills, ” among other areas. Def.'s Mem. at 3; see id., Ex. 1 at 1.

         The American Board of Family Medicine (“ABFM”) sets the standards for residents in the Family Medicine Department, Def.'s Mem. at 3, among which is a strict attendance requirement:

Residents are expected to perform their duties as resident physicians for a minimum period of eleven months each calendar year. Therefore, absence from the program for vacation, illness, personal business, leave, etc. must not exceed a combined total of one (1) month per academic year. The ABFM defines one month as 21 working days or 30 calendar days[.] Absence from residency education, in excess of one month within the academic year (G-1, G-2 or G-3 year) must be made up before the resident advances to the next training level, and the time must be added to the projected date of completion of the required 36 months of training.

Compl. ¶ 48 (emphasis removed). “There is no carve-out in the ABFM guidelines for a resident's absent days relating to any alleged infirmity, illness or disability.” Def.'s Mem. at 4.

         The Howard University Employee Handbook (“Handbook”) sets forth the “internal policies outlining the terms and conditions of employment at Howard, ” including “progressive discipline, ” id., starting with a supervisor's informal counseling of an employee whose performance, conduct or attendance shows “early signs of problems, ” id., Ex. 2 (Handbook Sec. 12.01); Compl. ¶ 13.[4] If informal counseling is ineffective, the Handbook calls for formal disciplinary action in four steps: Letter of Admonition; Letter of Warning and Performance Improvement Plan (PIP); a Final Warning; and Termination. See Def.'s' Mem., Ex. 2 (Handbook Sec. 12.02). Notwithstanding these provisions, Howard “reserves the right to omit any or all of the levels of discipline depending on the severity of the offense.” Id., Ex. 2 (Handbook Sec. 12.00).

         Plaintiff joined Howard's Family Medicine Residency Program on July 1, 2016, as a second-year resident. Compl. ¶ 1. She “was the only Caucasian, Jewish American female in the . . . program” at that time. Id. ¶ 2. Plaintiff's supervisors included three chief residents (two African born males and one Asian male). Id. ¶ 7. Her direct supervisor was Dr. Oladunni Filani (African born male), Director of the Family Medicine Program. Id.; Def.'s Mem. at 5. Dr. Mark Johnson (African American male) was the Chair of the Family Medicine Department, Compl. ¶ 7; Def.'s Mem. at 5, and Plaintiff's academic advisor, Compl. ¶ 35.

         Based on Plaintiff's “competency evaluations as well as [her] performance in the ambulatory clinic, inpatient services, and operating/procedure rooms, ” Def.'s Mem., Ex. 3, she met “the requirements to advance to the next . . . level of training within the Department of Community and Family Medicine, ” id., Ex. 3. By memorandum dated January 27, 2017, Dr. Filani notified Plaintiff of Howard's “intention to renew [her] Post Graduate Training contract for the 2017-2018 academic training year beginning July 1, 2017.” Id., Ex. 3; Compl. ¶ 3. Renewal was “contingent upon [her] continued demonstration of professional and medical competence and the successful completion of the [2016-17] academic year.” Def.'s Mem., Ex. 3.

         B. Orientation, Holidays and Meetings

          Plaintiff claims to have been singled out from the beginning. She alleges she was not given “[i]mportant information regarding orientation activities and onboarding communications/materials, ” Compl. ¶ 8, and was given “an expired and invalid meal ticket for the July 2016 orientation, ” id. ¶ 9. She allegedly was excluded from Christmas holiday events, id., and denied “[an] opportunity to attend resident events, such as the welcome of new hires event in July 2016, as [she] was intentionally put on call duty when these events were scheduled, ” id. Plaintiff alleges that she was subjected to “hateful comments” about “Americans, the American government, LGBT community, the Washington, DC African American community, and other disenfranchised groups.” Id. ¶ 10. And she “was not accommodated for time off to observe high holy Jewish observances, ” id., while directed “to work the Christian holiday of Christmas because [she is] Jewish, ” id.

         C. Sharps Injury

         “On September 30, 2016, [Plaintiff] suffered a needle stick injury and bodily fluid exposure while assisting the Obstetrics and Gynecology Attending Physician . . . in post-vaginal delivery surgical repair.” Id. ¶ 52. The attending physician allegedly instructed Plaintiff to use her hands instead of a retractor, and while sewing stitches on a patient with a venereal disease, he stuck Plaintiff's finger. See id. ¶¶ 52-53, 59. Plaintiff therefore had to take blood tests for HIV and hepatitis, and retesting over the following 12 months allegedly “caused [her] physical and emotional distress and anguish.” Id. ¶ 59.

         Plaintiff claims that this incident was an example of Howard's “frighteningly sloppy procedures, ” id. ¶ 53, and she faulted Howard's investigation of the incident as a “cover up for the fact that [it has] lax cross-contamination policies creating a serious potential hazard for the Hospital, ” id. ¶ 56. Following the incident, Howard allegedly shared information in Plaintiff's medical records without authorization, id., and “penalized [her] for taking necessary time off to tend to the medical needs [its] negligence posed, ” id. ¶ 58.

         Plaintiff alleges that, on October 11, 2016, Dr. Filani “summoned [her] to a meeting to discuss the sharps incident.” Id. ¶ 60. The meeting allegedly “turned into an interrogation, ” id., during which Dr. Filani expressed his disbelief at Plaintiff's account of the event. Id. Plaintiff also alleges that Dr. Filani “provided insulting and negative feedback stating that he or others are ‘walking on eggshells' around [her].” Id.

         D. Didactics Meetings

         Plaintiff alleges that there was a mandatory didactics meeting for all residents on Wednesday mornings. Pl.'s Opp'n, Ex. 31 at 1. On November 9, 2016, Dr. Filani scheduled meetings at 10 a.m. and 11 a.m., and Plaintiff did not attend either meeting, choosing “to only show up for call that afternoon.” Id., Ex. 31 at 1-2.

         According to Plaintiff, Dr. Filani “singled [her] out” by emailing her on November 9, 2016 regarding her failure to attend these meetings, despite the fact that other residents had also not attended. Compl. ¶ 15; see Pl.'s Opp'n, Ex. 31 at 2. She responded “in great detail that notice of the meeting was unclear and given at . . . short notice.” Compl. ¶ 15. She “was not aware of the meeting and so [she] was not there.” Pl.'s Opp'n, Ex. 31 at 2. She asked Dr. Filani to send her “detailed minutes” of the meeting. Id., Ex. 31 at 2. Dr. Filani found Plaintiff's explanation “unprofessional” and told Plaintiff it was her “responsibility to find out what was discussed not to request minutes to be sent[.]” Id., Ex. 31 at 1. Dr. Filani “[s]ubsequently . . . sent a written warning to all of the residents noting that a “few” residents had not attended the meeting.” Compl. ¶ 15 (emphasis in original); see Pl.'s Opp'n, Ex. 32.

         E. Encounter with Dr. Johnson

          Plaintiff claims that on December 8, 2016, she had “an extremely uncomfortable awkward interaction with . . . Dr. Mark Johnson.” Compl. ¶ 35. When Dr. Johnson “was made the Department head, [Plaintiff] and several others congratulated him by extending a hand for a simple formal professional handshake.” Id. Rather than shake Plaintiff's hand, Dr. Johnson allegedly “pulled [her] close to him, chest to chest in a bear hug wrapping his arms around [her] in an overly intimate gesture.” Id. Plaintiff “was shocked, stunned and taken aback, ” finding the gesture “extremely unprofessional and unwelcome[.]” Id. Thereafter, she avoided any private meeting with Dr. Johnson. Id.

         Plaintiff filed a complaint by email regarding the encounter with Dr. Johnson on March 30, 2017, to the attention of “HR Specialist.” Pl.'s Opp'n, Ex. 4 at 1-2; see Compl. ¶ 35. Dr. Antwan-La'Mont Lofton, Director, Employee Relations & Equal Employment Opportunity at Howard's Office of Human Resources, acknowledged receipt of the email on that same date. Pl.'s Opp'n, Ex. 4 at 1.

         F. Dr. Kolko and La Clínica

          On February 1, 2017, Dr. Joshua Kolko at La Clínica del Pueblo, a maternity care clinic, received a telephone call from a prenatal patient whose condition warranted hospital admission. See Def.'s Mem., Ex. 4 at 1. Dr. Kolko instructed his patient to proceed directly to Howard University Hospital, and he contacted Plaintiff, the family medical resident on call, to relay the patient's information. Id., Ex. 4 at 1; Compl. ¶ 17. Plaintiff alleges that she “appropriately triaged and admitted the patient” and “contacted Dr. Somwaru, the resident responsible for this . . . patient.” Compl. ¶ 17. Dr. Somwaru allegedly “refused to attend [the] birth despite being the responsible resident and being told by the chief resident Dr. DeMata to do so.” Id.; see id. ¶ 18.

         Dr. Kolko emailed Dr. Filani on February 23, 2017, and told him that during the February 1, 2017 call with Plaintiff, she informed him that “she would not be involved in deliveries[.]” Def.'s Mem., Ex. 4 at 1; see Compl. ¶ 18. Dr. Kolko also told Dr. Filani that in addition to Plaintiff's alleged refusal to tend to the patient, Plaintiff had been absent from her clinic rotation on December 1, 2016 and December 15, 2016. Def.'s Mem., Ex. 4 at 1-2; see id., Ex. 7 at 1.[5]

         On or about April 12, 2017, Plaintiff spoke to Dr. Kolko about the February 1, 2017 incident. Compl. ¶ 19. She then sent him a follow up email on April 13, 2017, in which she again asserted that it was Dr. Somwaru who was responsible for the patient, and denied having “missed or skipped . . . a delivery assigned to [her].” Pl.'s Opp'n, Ex. 16. She also claimed that Dr. Kolko “misinterpreted [their] conversation and relayed misinformation to the Howard FM Residency Program, ” and she told Dr. Kolko that he “should have talked to [her] before [he] made the erroneous and slanderous written statements.” Id., Ex. 16. She asked Dr. Kolko “to . . . correct [his] statements . . . and rectify these matters.” Id., Ex. 16.

         G. Intern Chat Room

         In February 2017, Plaintiff learned that the interns “had a chat room on a cyber communications application[] where they would talk about [her].” Compl. ¶ 24. She claims that “[m]anagement set up a smear campaign on a cyber chat board, ” Pl.'s Opp'n at 31, where plaintiff's “subordinates/interns . . . started maligning [her] on this cyber application weirdly, ” id. None of the interns “talked to [her] while on duty . . . or at any time about any alleged concerns about [her] supervisory role.” Compl. ¶ 26. Instead, according to Plaintiff, the interns “collaborated on writing a letter to launch allegations against [her].” Id. ¶ 25; see Pl.'s Opp'n at 32. Plaintiff considered herself “bullied and cyber-bullied, and subject to hostility[.]” Compl. ¶ 26, see Pl.'s Opp'n at 31-33.

         H. Online Exam

         In late February 2017, “residents sat for an in-person exam held through a testing vendor's online website.” Compl. ¶ 20. “Dr. Filani proctored the exam in person.” Id. Plaintiff claims that Dr. Filani was unable to score most of the exams because he was under the misimpression that the residents' answers had not been recorded. Pl.'s Opp'n, Ex. 10 at 2. Dr. Filani told the residents to retake the exam, ” Compl. ¶ 20, and he set the test “in tutor mode [to] give [the residents] immediate feedback, ” Pl.'s Opp'n, Ex. 10 at 1. He explained that “[t]he essence of the test is not just . . . scores but also the avenue to provide quick study material on topics . . . covered in the Board review series.” Id., Ex. 10 at 1.

         Plaintiff contacted the vendor's representative who allegedly “refuted Dr. Filani's claim that the exam results were lost.” Compl. ¶ 21; see Pl.'s Opp'n, Ex. 10 at 1. She “learned that the results were safely stored at the vendor's site.” Compl. ¶ 21. Plaintiff concluded that it was unnecessary to retake the exam, and communicated this to her colleagues via email:

[A]ll 11 exams taken for FMRESIDENTS classroom activity on 2/22/17 went through and have associated scores. The company actually guarantees that scores are recorded even when the proctor closes the browser or computer! If you took the test on this past Wednesday, the company has every score report in their system. The company says there is no need for a retake if you took it already when it was proctored this past Wednesday. Good news!

Pl.'s Opp'n, Ex. 10 at 1-2.

         Plaintiff claims that Dr. Filani responded in an email in which he accused her of “instructing the other residents to disregard his instructions.” Compl. ¶ 22. Dr. Filani's email to Plaintiff stated:

On Weds 02/22/2017 I arranged a quarterly test for the residents which you took and completed. I sent instructions to all the residents informing them of an error with my computer system that made it difficult for me to score them and asked that the test be taken again . . . .
As of Friday 02/24/2017 I had already become aware that the test scores were available but decided to allow a revision for the residents by changing the mode of the test to allow for immediate feedback. Thus I chose not to change the directive that I had given to the residents.
I would like an explanation for why you felt it was appropriate and necessary for you to give instructions to residents not to take the test anymore thereby contradicting my earlier given directive.

Pl.'s Opp'n, Ex. 11 at 1-2. Plaintiff deemed Dr. Filani's accusation “false and ludicrous, ” Compl. ¶ 22, and considered his “reaction and manner in which he rebuked [her] uncalled for, ” id. She felt that she had been “singled out for insubordination, and [was] compelled to respond, ” Pl.'s Opp'n at 15, by email on March 2, 2017, in which she denied giving her fellow residents instructions or contradicting Dr. Filani's instructions, of which she claimed to be unaware. See id., Ex. 11 at 1.

         I. Meeting with Dr. Lofton

          Plaintiff met with Dr. Lofton on March 9, 2017 and “raised many concerns about mistreatment, differential treatment, and retaliation.” Compl. ¶ 30. She claims that Dr. Lofton “assessed that [she] was ‘in a hostile work environment, ” id., and “recommended . . . ‘interim remedial action, '” id. Although he was to meet with Plaintiff again, he “made himself unavailable” when she contacted him after receiving a Formal Warning on March 9, 2017. Id.; see Pl.'s Opp'n, Ex. 34.

         J. Formal Warning

         On March 9, 2017, shortly after her meeting with Dr. Lofton, Plaintiff received a Formal Warning from Dr. Johnson by email. Compl. ¶¶ 30, 12; see Pl.'s Opp'n, Ex. 12 at 2. Dr. Johnson's letter noted Plaintiff's “refusals to complete . . . work assignments, insubordination, and failure to adhere to program requirements concerning work assignments for interns.” Pl.'s Opp'n, Ex. 12 at 2. He cited the following conduct:

[R]efusing legitimate instructions to complete assignment at La Clínica; informing La Clínica that [she would] no longer be accepting Obstetric patient assignments at that facility nor caring for patients in the Labor and Delivery suite at the Hospital; instructing interns to report to the Labor and Delivery suite; and failing to provide proper oversight of interns assigned to [her], which poses a potential risk to patient safety.

Id., Ex. 12 at 2. Dr. Johnson reminded Plaintiff of her obligation “to be present at all assignments and [to] complete all work as assigned by the Program Director.” Id., Ex. 12 at 2. Invoking “the requirements of the Family Medicine Program, the House Staff Manual, and the applicable provisions of the [collective bargaining agreement] covering the residents, ” Dr. Johnson advised Plaintiff that she “may not refuse legitimate work instructions and assignments related to [her] training and performance in the Residency Program[.]” Id., Ex. 12 at 2. He warned her that “[f]urther refusals to complete . . . work assignments, insubordination, instructing interns to report to Labor and Delivery, and failure to appropriately oversee the interns assigned to [her] may result in further disciplinary action up to and including termination from the Residency Program.” Id., Ex. 12 at 2. Plaintiff expressed her surprise at the Formal Warning in a lengthy email to Dr. Johnson, in which she denied the conduct charged. See id., Ex. 12 at 1. She denied having told ...


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