United States District Court, N.D. Alabama, Southern Division
LATOSHIA E. DONALD, Plaintiff,
UAB HOSPITAL MANAGEMENT, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
WILLIAM M. ACKER, Jr., District Judge.
Before the court are the responses of plaintiff Latoshia Donald (Doc. 21) and defendant UAB Hospital Management, LLC ("UAB") (Doc. 23) to this court's order (Doc. 20) to show cause why Donald should not be required to dismiss some of her claims. For the reasons set forth below, Donald will be required to dismiss either her retaliation claim or her race discrimination claim.
Donald, an African-American, worked for UAB as a Registered Nurse from October 2012 until April 2013. (Doc. 1 at 2-3, ¶¶ 8, 10, 14). Donald alleges that she and other African-American coworkers were constantly subjected to "racially discriminatory comments and treatment." (Doc. 1 at 3, ¶ 11). On April 8, 2013, Donald and her coworkers complained to UAB's Human Resources department about this treatment and about UAB's solution, namely, simply to assign the complaining African-Americans to different shifts. (Doc. 1 at 3, ¶ 14). UAB terminated Donald during her next shift, saying that it was because of a patient complaint. Donald had no history of patient complaints, and no investigation was undertaken regarding this complaint. (Doc. 1 at 4, ¶¶ 17-18). Donald attempted to seek internal review of her termination, claiming that it was an act of discrimination, but UAB denied review based upon the fact that its policies did not permit her to obtain review when her supervisors were also African-American. (Doc. 1 at 4, ¶¶ 19-20).
Donald filed this action against UAB on April 21, 2014. In her complaint, she presents three claims of causes of action, all under Title VII: (1) discrimination, (2) hostile work environment, and (3) retaliation, all connected to her race. In her race discrimination claim, she alleges that she was terminated because of her race and was replaced by a Caucasian employee. In her hostile work environment claim, she alleges that the UAB work environment was racially hostile and negatively affected the terms, conditions, and privileges of her employment. In her retaliation claim, she alleges that she was terminated in retaliation for reporting the racial harassment and discrimination. (Doc. 1 at 5-6, ¶ 33).
On May 12, 2015, pursuant to the court's authority to order dismissal under Fed.R.Civ.P. 12(b)(6) sua sponte in appropriate circumstances, the court notified the parties of what it perceived to be a jurisdictional problem and gave them an opportunity to respond. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). The court ordered Donald to show cause why she should not be required either to dismiss her retaliation claim or to dismiss her other claims and amend her retaliation claim to allege that retaliation was the "but-for" cause for the adverse employment action she complains of. Both parties have responded to the court's order.
In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court held that "Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action." 133 S.Ct. 2517, 2528 (2013) (emphasis added). "This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action...." Id. at 2533. This court has consistently interpreted this requirement to mean that "[i]f a plaintiff wants to pursue a retaliation claim she must in her complaint indicate that retaliation was the "only, " or "but-for" motive for her termination [and] must make it perfectly clear in her pleading that there are no proscribed motivations other than an intent to retaliate.'" Savage v. Secure First Credit Union, No. 2:14-cv-2468-WMA, 2015 WL 2169135, at *3 (N.D. Ala. May 8, 2015) (quoting Montgomery v. Bd. of Trs. of the Univ. of Ala., No. 2:12-cv-2148-WMA, 2015 WL 1893471, at *5 (N.D. Ala. Apr. 27, 2015)); see also Culver v. Birmingham Bd. of Educ., 646 F.Supp.2d 1270, 1271-72 (N.D. Ala. 2009) (ADEA); Dixon v. Birmingham, Ala., No. 2:13-cv-404-WMA, 2015 WL 353162, at *1 (N.D. Ala. Jan. 27, 2015) (ADA). This court does not back away from what it said in Savage. This opinion is not only consistent with but lends further support to the Savage opinion.
Donald makes two arguments in support of her position that none of her claims should be dismissed. She first contends that her race discrimination and retaliation claims may co-exist, citing Burrage v. United States, 134 S.Ct. 881 (2014), which this court discussed at some length in Savage, 2015 WL 2169135, at *1-2. In Burrage, the Supreme Court dealt with the causation requirement in a criminal statute, but the Court, after finding the statute's plain meaning to require actual cause, applied the Nassar "but-for" standard in order to determine the parameters of the actual causation requirement. In elaborating upon the meaning of but-for causation, the Court said:
Thus, "where A shoots B, who is hit and dies, we can say that A [actually] caused B's death, since but for A's conduct B would not have died." The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so-if, so to speak, it was the straw that broke the camel's back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.
Id. at 888 (internal citations omitted).
From this language, Donald argues that her claims of race discrimination and retaliation are not mutually exclusive and can proceed in tandem, because the Supreme Court recognized that a cause can combine with underlying sub-factors and still be deemed the "but-for" cause. Donald reads these examples incorrectly. This becomes clear by looking at the context in which the Court was speaking. In Burrage, the defendant was convicted under the Controlled Substances Act for selling heroin to the victim. After ingesting the heroin, the victim died, triggering the inquiry at sentencing about enhancement, but no one could testify as to whether the heroin actually caused the victim's death or whether his death resulted from any of a number of other drugs in his system. Id. at 885-86. In discussing causation, the Supreme Court was principally concerned with whether the one drug - heroin - was the but-for cause of the victim's death. The point the Court was making is that, in each of these examples, there is only one but-for cause although other drugs or diseases could in some sense be considered actual causes, since all may have played some incremental part in causing the bad result. The Court only pointed to the straw that broke the camel's back, namely, the poison that was the single but-for cause of the death. Contrary to Donald's position, the Court was not making some larger point about the interplay and sufficiency of the various other factors. This court cannot divine from Burrage the meaning Donald would give it.
The intent of the Supreme Court is made even more clear by what it said in the next paragraph of the Burrage opinion:
Consider a baseball game in which the visiting team's leadoff batter hits a home run in the top of the first inning. If the visiting team goes on to win by a score of 1 to 0, every person competent in the English language and familiar with the American pastime would agree that the victory resulted from the home run. This is so because it is natural to say that one event is the outcome or consequence of another when the former would not have occurred but for the latter. It is beside the point that the victory also resulted from a host of other necessary causes, such as skillful pitching, the coach's decision to put the leadoff batter in the lineup, and the league's decision to schedule the game. By contrast, it makes little sense to say that an event resulted from or was the outcome of some earlier action if the action merely played a nonessential contributing role in ...