United States District Court, D. Delaware
DR. NANCY MONDERO; JUDY L. HOWETT, NP; MARGARET M. SAWYER; TANIKKA R. MILLER; and MARIAM L. LONG, Plaintiffs,
LEWES SURGICAL & MEDICAL ASSOCIATES, P.A., a Delaware Professional Association; SEMAAN M. ABBOUD, M.D.; and BETH E. BITTNER, Defendent.
REPORT AND RECOMMENDATION
MARY PAT THYNGE, Magistrate Judge.
This employment discrimination case involves several claims. Plaintiffs, Dr. Nancy Mondero ("Mondero"), Judy L. Howett, NP ("Howett"), Margaret M. Sawyer ("Sawyer"), Tanikka R. Miller ("Miller"), and Marian L. Long ("Long") (collectively, "plaintiffs") allege they were wrongfully terminated from their employment with defendant, Lewes Surgical & Medical Associates ("LSMA"). Mondero, Howett, Miller, and Sawyer were terminated on January 10, 2013, and Long was terminated on February 19, 2013. Plaintiffs bring the following claims: Count I for hostile work environment and sex discrimination under Title VII of the Civil Rights Act of 1964; Count II for hostile work environment and sex discrimination under 19 DEL. C. § 711; Count III, as to Howett, Sawyer, and Long for Federal Age Discrimination pursuant to 26 U.S.C. § 621 et seq.; Count IV, racial discrimination and hostile work environment under Title VII as to Miller; Count V, regarding Miller, Sawyer, and Long, breach of the implied covenant of good faith and fair dealing in employment; Count VI, ERISA violations pursuant to 29 U.S.C. § 1001 et seq. as to Mondero and Howett; Count VII, conversion of 401K money alleged by Mondero and Howett; and Count VIII, conversion of meaningful use funds asserted by Howett against LSMA and defendants Semaan M. Abboud, M.D. ("Abboud") and Beth E. Bittner ("Bittner") individually.
Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (FED. R. CIV. P.) on Counts I, II, V, VI, VII, and VIII and Counts I, II, III, and IV with respect to Abboud and Bittner.
LSMA is a medical provider with two offices in Sussex County, Delaware that is solely owned by Abboud. Plaintiffs were employed at LSMA beginning at various times until their respective terminations on either January 10 or February 19, 2013. Mondero was employed at LSMA as a doctor beginning in 2002 until January 10, 2013,  and claims to be a member of three protected classes: female, homosexual, and over the age of 40. Howett, a female over the age of 40 years, was employed at LSMA as a nurse practitioner from June 1, 2002 until January 10, 2013. Miller served as a receptionist from April 2008 until January 10, 2013. Miller is a female African American. Sawyer, a female over the age of 40 years, worked as a registered nurse from November 2007 until January 10, 2013. Long was employed as a registered nurse from May 2006 until February 19, 2013,  and is also a female over the age of 40 years.
In September 2012, Abboud hired Bittner to serve as LSMA's office manager. Although LSMA's hiring policy provided that, to the extent possible, job openings would be filled from within the company, the position of office manager was not advertised within LSMA. Plaintiffs allege that Bittner and Abboud were engaged in a romantic affair prior to Bittner's hiring. They also contend that Bittner was unqualified for the position, and obtained the job solely due to her relationship with Abboud. After her appointment as officer manager, Bittner immediately changed long standing office policy including "the handling of employee vacation and sick time and the use of cell phones."
Plaintiffs assert that Abboud and Bittner openly discussed their relationship and demonstrated their affection within the offices of LSMA and in the presence of employees. Plaintiffs further claim Abboud repeatedly and publicly made discriminatory comments, such as, referring to blacks as "n___ers, " describing his wife and daughter as "whores, " and expressing his disapproval of gays and lesbians.
Plaintiffs complained to Abboud about Bittner's management. Despite receiving excellent performance evaluations, following Bittner's appointment as office manager, plaintiffs were terminated.
Motion to Dismiss Standard
In analyzing a motion to dismiss under FED. R. CIV. P. 12(b)(6), a review of Rule 8(a)(2) is necessary. It requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." That standard "does not require detailed factual allegations, ' but... demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Thus, to survive a motion to dismiss under Rule 12(b)(6), a complaint "must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'" The purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of a complaint, not to resolve disputed facts or decide the merits of the case. Evaluating a motion to dismiss under Rule 12(b)(6) requires the court to accept as true all material allegations of the complaint. "The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." A motion to dismiss may be granted only if, after, "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to the plaintiff, plaintiff is not entitled to relief."
To survive a motion to dismiss under Rule 12(b)(6), however, the factual allegations must be sufficient 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)." A plaintiff is obliged "to provide the grounds' of his entitle[ment] to relief'" beyond "labels and conclusions." Heightened fact pleading is not required: rather "enough facts to state a claim to relief that is plausible on its face" must be alleged. Rejected are unsupported allegations, "bald assertions, " or "legal conclusions." Further, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." The analysis is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Well-pled facts which only infer the "mere possibility of misconduct, " do not show that "the pleader is entitled to relief, '" under Rule 8(a)(2). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief."
Plaintiffs raise two distinct Title VII claims against LMSA, Abboud, and Bittner: hostile work environment sexual harassment and intentional sex discrimination. However, as defendants note in their opening brief, and as plaintiffs stipulate to in their answering brief, Title VII does not provide for individual liability, and the claims against Abboud and Bittner should be dismissed. Therefore the court will address the Title VII claims only against LMSA.
Hostile Work Environment
For a hostile work environment action, "a plaintiff must establish by the totality of the circumstances, the existence of a hostile or abusive working environment which is severe enough to affect the psychological stability of a minority employee.'" An environment is "sufficiently severe or pervasive [when it] alter[s] the conditions of [the plaintiff's] employment and create[s] an abusive working environment.'" A plaintiff must prove five elements: she suffered intentional discrimination because of her gender or race; the discrimination was severe or pervasive; the discrimination detrimentally affected the plaintiff; the discrimination would detrimentally affect a reasonable person in like circumstances; and the existence of respondent superior liability.
Title VII does not operate as a "general civility code, " nor "mandate a happy workplace." "[S]imple teasing, offhand comments,  isolated incidents (unless extremely serious), " "[o]ccasional insults, ... or episodic instances of ridicule are not enough; they do not permeate' the workplace and change the very nature of the plaintiff's employment."
Plaintiffs allege to be "victims of a hostile work environment" due to the relationship between Abboud and Bittner. The Equal Employment Opportunity Commission's Policy Guidance recognizes that sexual favoritism may be a basis for a hostile work environment claim where both male and female employees found the conduct objectionable, regardless to whom such conduct was directed. In the only case in which the Third Circuit appears to have considered the issue, the court, applying New Jersey law, found that:
[a] sexual relationship between a supervisor and a co-employee could adversely affect the workplace without creating a hostile sexual environment. A supervisor could show favoritism that, although unfair and unprofessional, would not necessarily instill the workplace with oppressive sexual accentuation. The boss could treat everyone but his or her paramour badly and all of the subordinates, save the paramour, might be affected in the same way.
Such conduct does not create a claim of sexual harassment. The facts alleged show that while Abboud's preferential treatment of Bittner may have been unfair and unprofessional, it did not create a "workplace with oppressive sexual accentuation" nor rise to the level of sexual harassment necessary to find a hostile work environment. No claim is made that plaintiffs were discriminated against because of their gender; rather, they argue unfair treatment ...