United States District Court, M.D. North Carolina
CHARLES E. GREENE, Plaintiff,
DURHAM REGIONAL HOSPITAL, DUKE UNIVERSITY HEALTH SYSTEM, INC., JOSEPH BRIAN WILLIAMS, Defendants.
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, Magistrate Judge.
This employment discrimination action is before the Court on a Motion to Dismiss and to Confirm Arbitration Award [Doc. #10] filed by Defendants Duke University Health System, Inc. ("Duke"), Durham Regional Hospital ("Durham Regional"), and Joseph Brian Williams (collectively "Defendants"). Plaintiff Charles E. Greene is a former employee of Defendant Durham Regional Hospital and brings various claims related to the termination of his employment. For the reasons stated below, Defendants' Motion to Dismiss and to Confirm Arbitration Award should be granted, and this action should be dismissed.
I. FACTS, CLAIMS, AND PROCEDURAL HISTORY
Plaintiff filed his Complaint in state court, and Defendants removed it to this Court pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4), based upon federal question jurisdiction. (Pet. for Removal [Doc #1].) In his Complaint, Plaintiff alleges that he was the communications department director at Durham Regional Hospital at all relevant times. According to Plaintiff, Defendant Duke University Health System, Inc. owns and operates Defendant Durham Regional Hospital. Plaintiff's First Claim for Relief is against all Defendants for retaliation. His Second Claim for Relief is against all Defendants for negligent infliction of emotional distress. Plaintiff's Third Claim for Relief is against Defendants Durham Regional and Duke for respondeat superior. Plaintiff Greene seeks damages as relief.
The EEOC issued a Dismissal and Notice of Rights to Plaintiff on June 25, 2010. Plaintiff filed his Complaint in state court on September 24, 2010. In his Complaint, Plaintiff alleges that his EEOC charge against Defendants was for sex discrimination. (Compl. [Doc. #2] ¶ 7.) He says that he is an African American who began working at Defendant Durham Regional in 1999 as an assistant manager in the laundry department. In April 2001, Plaintiff was transferred to the communications department to work as a telephone operator.
In May 2008, Plaintiff was advised by Defendant Williams, the director of the communications department, that his work schedule would be changing and that he would no longer have weekends off. Plaintiff contends that this change was made without giving him proper notice. He also claims that he was forced to change his work schedule because he was a male, and Defendant Williams did not wish to disrupt the work schedules of the female telephone operators. Plaintiff says that he had to use much of his allotted personal time off to keep the commitments he had made for periods of time when he was now scheduled to work. Plaintiff states that he complained for four months (from May 2008 until August 2008) through the chain of command at Defendant Durham Regional about his work schedule and the alleged discrimination of Defendant Williams.
Plaintiff alleges that on July 31, 2008, he received a performance report from Defendant Williams with ratings "not compatible" with his performance. (Compl. [Doc. #2] ¶ 17.) On October 9, 2008, Plaintiff states that while at work he answered a telephone call from someone who was "not a serious caller and was not a patient or someone seeking medical assistance." (Id. ¶ 18.) Plaintiff says that he "engaged the caller in a joking manner." (Id.) Plaintiff alleges that prior to that night, Defendant Williams had instructed another telephone operator to listen in on Plaintiff's conversations and to inform Defendant Williams of any occurrences which could lead to Plaintiff's termination. Shortly after Plaintiff's conversation with the caller, the other operator alerted Defendant Williams "to the fact that Plaintiff engaged in a questionable conversation and gave Defendant Williams the time to listen to Plaintiff's recorded incoming calls." (Id. ¶ 20.)
On October 20, 2008, Plaintiff reported to the human resources department as instructed and found Defendant Williams and a human resources representative waiting for him. A tape of Plaintiff's October 9, 2008, phone call was played, and Plaintiff was asked to sign termination paperwork. Plaintiff states that the reasons given for his discharge were flagrant misconduct and incivility (failure to appropriately interact with others).
Defendants move to dismiss based upon the arbitration proceedings already completed by the parties. (Def.'s Mem. [Doc. #11].) They contend that Plaintiff initiated arbitration proceedings under Duke's Dispute Resolution Policy, which covers any claim arising out of or relating to employment practices. Plaintiff does not deny that he was subject to the Policy, that his claims fell within the scope of the Policy,  or that he arbitrated his differences with Defendants, but contends that the arbitration process "was executed in a manner that caused great harm to [his] case and did not allow for a fair hearing." (Pl.'s Resp. [Doc. #19] at 1.)
Defendants have submitted a copy of the arbitration award entered on May 26, 2009. According to the Award [Doc. #11-4 at 4], the arbitration hearing was held at Durham Regional Hospital on April 14, 2009. Duke University is listed as the Respondent in the Award, and Plaintiff is the Claimant. Several witnesses testified on behalf of both parties and several documents and sound recordings were introduced into evidence, according to the Award. The arbitrator found that when Plaintiff answered the phone call on October 9, 2008, that he "pretended to be someone else, " "talked to the caller about a job, " "raised the pitch of his voice to sound more like a woman and, among other things, told the caller that he could work there if he was as young as five-years-old." (Id.) The recording of the call made its way to Plaintiff's supervisors who initiated disciplinary action. A dispute resolution panel comprised of Plaintiff's fellow employees recommended that the initial decision to terminate him be upheld. Plaintiff then submitted his arbitration claim.
The arbitrator found that Plaintiff had not established that his termination violated any laws, including those prohibiting discrimination, nor had he established that his termination violated any contract with his employer or rules or policies of the employer. The arbitrator stated that Plaintiff based his claim instead upon what he perceived to be the employer's overreaction. The arbitrator also did not find evidence "that anyone at the hospital was intent of having [Plaintiff] terminated before this incident." (Id. at 5.) Plaintiff's request that his termination be rescinded was denied.
In his Response to Defendants' Motion to Dismiss and to Confirm the Award, Plaintiff argues that the Award should not be confirmed because the arbitrator refused to consider his evidence, Defendants did not provide him with any documents or a witness list before the hearing, the audio CD played during the hearing was played at a very low volume, and although the arbitrator's decision states that the hospital presented evidence, Plaintiff states that it did not present any witnesses. (Pl.'s Response [Doc. #19] at 2-3.) Plaintiff also argues that he did not receive any document advising him that he could appeal the arbitrator's decision. He says that he called the American Arbitration Association offices and "was told that unless the arbitrator broke a law during the proceedings that the decision was final and could not be appealed." (Id. at 4.)