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Davis v. Medical University of South Carolina Physicians

United States District Court, D. South Carolina, Charleston Division

July 28, 2016

Kisha Marie Davis, Plaintiff,
v.
Medical University of South Carolina Physicians, Defendant.

          Kisha 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

          MARY GORDON BAKER, Magistrate Judge.

         This 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.

         On 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.)[1] 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.[2] (2015 Lawsuit, Dkt. No. 30.)

         Pursuant 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 consideration.

         Having reviewed the parties' submissions and the applicable law, the undersigned recommends that the Defendant's Motion to Dismiss/Amended Motion to Dismiss be granted.

         1. FACTUAL AND PROCEDURAL BACKGROUND

         a. 2014 Lawsuit

         The 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.)

         Plaintiff 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.)

         Plaintiff 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 HR:

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 ...

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