United States District Court, D. South Carolina, Charleston Division
Marie Davis, Plaintiff, Pro Se.
Medical University of South Carolina Physicians, Defendant,
represented by Andreas Neal Satterfield, Jr., Jackson Lewis
PC & John Sulau, Jackson Lewis PC.
REPORT AND RECOMMENDATION
GORDON BAKER, Magistrate Judge.
matter is before the court on Defendant Medical University of
South Carolina Physician's Motion to Dismiss
Plaintiff's Complaint (Dkt. No. 18) and Amended Motion to
Dismiss Plaintiff's Complaint (Dkt. No. 27) ("2015
Lawsuit"). The Plaintiff, Kisha Marie Davis, proceeding
pro se, filed a previous employment action against
Defendant on September 18, 2013, see Davis v.
MUSC-Physicians, Civ. A. No. 2:13-cv-2544-WWD; she filed
another Complaint on August 6, 2014, see Davis v.
MUSC-Physicians, Civ. A. No. 2:14-cv-3152-MGB. By Order
dated November 4, 2014, the two actions were consolidated.
Davis v. MUSC-Physicians, Civ. A. No.
2:14-cv-3152-MGB. ("2014 Lawsuit.) On February 11, 2015,
upon consent of both parties, the 2014 Lawsuit was referred
to the undersigned for final disposition (2014 Lawsuit, Dkt.
No. 65.). On March 29, 2016, the undersigned granted summary
judgment to the Defendant and denied summary judgment to the
Plaintiff in the 2014 Lawsuit. The order granting summary
judgment to the Defendant is on appeal at this time to the
Fourth Circuit Court of Appeals.
August 3, 2015, the Plaintiff filed the instant lawsuit
against the same Defendant, MUSC-Physicians
("MUSC"), for violations of the Family and Medical
Leave Act and the American with Disabilities Act
("ADA"), arising out of the same set of facts.
(2015 Lawsuit, Dkt. No. 1.) On October 23, 2015, the
Defendant filed a Motion to Dismiss on the grounds that this
lawsuit is duplicative of the 2014 Lawsuit. (2015 Lawsuit,
Dkt. No. 18.) On October 26, 2015, an order pursuant to
Roseboro v. Garrison was filed in which the court
advised the Plaintiff of the dismissal procedures and the
possible consequences if she failed to respond adequately to
the Defendant's motion. (2015 Lawsuit, Dkt. No.
22.) On December 2, 2015, the Plaintiff
filed a Response in Opposition to the Motion to Dismiss.
(2015 Lawsuit, Dkt. No. 26.) On June 10, 2016, the Defendant
filed an Amended Motion to Dismiss on the additional ground
of res judicata. (2015 Lawsuit, Dkt. No. 27.) On
June 13, 2016, another order pursuant to Roseboro v.
Garrison was filed in light of the Amended Motion to
Dismiss. (2015 Lawsuit, Dkt. No. 28.) On July 19, 2016, the
Plaintiff filed a Response to the Amended Motion to
Dismiss. (2015 Lawsuit, Dkt. No. 30.)
to the provisions of Title 28, United States Code, Section
636(b)(1)(A), and Local Rule 73.02(B)(2)(g), D.S.C., all
pretrial matters in employment discrimination cases are
referred to a United States Magistrate Judge for
reviewed the parties' submissions and the applicable law,
the undersigned recommends that the Defendant's Motion to
Dismiss/Amended Motion to Dismiss be granted.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff's 2014 lawsuit alleged that while she was
employed with the Defendant, she was hired as a "Coder
1" in August or September of 2011. (2014 Lawsuit, Dkt.
No. 32 at 3 of 5; Dkt. No. 1 at 4 of 12.) She alleged that
she was a certified coder and that she had "been waiting
for a surgical coder position, Pay Band 4, to become
available." (2014 Lawsuit, Dkt. No. 32 at 3 of 5.)
According to Plaintiff, she was "contacted for a peer
review which consisted of 3 white coders, peers,
non-management." (Id.) Plaintiff stated:
During this peer review, each peer had a copy of my
application with all info to include my birth date, social
security number, past salaries, information beyond that
contained on a resume. After the peers questioned my
abilities, they stated that they knew me, Sherry Blackwell &
Shawn Whitney, but they wanted to see me. Prior to the peer
review we had an ongoing electronic relationship. Very
friendly. After they saw me, no more contacts were made. The
relationship we had disappeared.
(2014 Lawsuit, Dkt. No. 32 at 3-4 of 5 (emphasis in
original).) Plaintiff alleged that two of the members of the
peer review team "stated that they just wanted to see
[Plaintiff], and started making reference to how pretty
[Plaintiff] was and how [Plaintiff] always look[ed] so
nice." (2014 Lawsuit, Dkt. No. 1 at 4 of 12.) According
to Plaintiff, as she was leaving, she "heard another
voice asking, Is that her, '" and although Plaintiff
"felt really awkward, " she did not look back.
(2014 Lawsuit, Dkt. No. 1 at 4 of 12.)
alleged that approximately two weeks later, she
"withdrew [her] application when [she] realized [she]
was not going to be interviewed." (2014 Lawsuit, Dkt.
No. 36-1 at 6 of 137.) Plaintiff stated she withdrew her
application because she "just couldn't stand to see
that [she] was not selected for even an interview for a job
[she] was well qualified to do." (2014 Lawsuit, Dkt. No.
1 at 5 of 12.) After this peer review process, Plaintiff
alleged, "the coders no longer emailed [her] for
assistance or help of any kind." (2014 Lawsuit, Dkt. No.
1 at 5 of 24.)
alleged that she later learned "that a younger, newly
certified, white coder, [her] subordinate from under [her]
leadership was offered the position." (2014 Lawsuit,
Dkt. No. 32 at 4 of 5.) Plaintiff asserted that she never
received an interview, even though the employee manual
indicates that "internal candidates should receive an
interview, and follow up as to why, or why not hired." (
Id. ) According to Plaintiff, during a meeting with
I then asked what made my subordinate, newly credentialed
coder, less qualified than me such an exceptional candidate
rendering me unworthy of at least an interview. No answer was
given. Brad Evans, HR director at that time promised he would
get to the bottom of it. He resigned suddenly. No explanation
was ever given as stated ...