United States District Court, E.D. Arkansas, Pine Bluff Division
Marshall Jr. United States District Judge.
Lee Davis is a cardiologist who used to have staff privileges
at Jefferson Regional Medical Center in Pine Bluff. The
hospital revoked those privileges. Dr. Davis sued, arguing
that his race drove JRMC's decision. His lawsuit failed.
His problems in taking care of patients, with documentation,
and with unprofessional behavior-not his race - led to the
revocation. Davis v. Jefferson Hospital Association,
No. 5:09-cv-58-DPM, No. 141 & 142 (E.D. Ark.
2010), affirmed, 685 F.3d 675 (8th Cir. 2012). Dr.
Davis still practices medicine in Jefferson County; and he
understandably wants his privileges at the local hospital
restored. As things are, he must admit patients to Little
Rock hospitals, which is not only inconvenient, but means
more expenses and less income.
much back and forth, JRMC denied Dr. Davis's request for
restoration of privileges at the pre-application phase.
JRMC's January 2014 decision letter is attached to and
incorporated in Dr. Davis's complaint and amended
complaint. No. 1 & 15. The hospital gave two
main reasons for saying no: insufficient credentials and a
lawsuit. The credentials issues were about Dr. Davis's
practice in recent years -lack of on-call work, lack of
hospital committee service, and not enough heart procedures.
JRMC also pointed to its 2008 revocation, which was based
partly on patient-care concerns. The hospital also pointedly
relied on Dr. Davis's having filed a lawsuit against JRMC
and several doctors. It wasn't the federal case already
mentioned; Dr. Davis had filed a similar lawsuit alleging
race discrimination in state court while he was also seeking
re-appointment to the medical staff. Though Dr. Davis
eventually dismissed this other case without prejudice, JRMC
concluded that his simultaneous pursuit of undisclosed
litigation and restored privileges showed an unwillingness to
work with the hospital.
case, Dr. Davis claims (under federal and state law) a
retaliatory decision based on his second lawsuit, with a side
claim that JRMC violated the Arkansas Freedom of Information
Act. Dr. Davis pleads that "[w]ith the exception of the
comments concerning the lawsuit, the factual allegations
contained in the 1/24/14 letter referencing other reasons for
the refusal to allow [Dr. Davis] to apply are false''
No. 15 at 2. He also pleads that two similarly
situated doctors have current JRMC credentials. Are Dr.
Davis's retaliation claims implausible, and thus subject
to a Rule 12(b)(6) dismissal, as defendants argue, based on
Blomker v. Jewell, 831 F.3d 1051 (8th Cir. 2016), a
recent divided opinion from the Court of Appeals?
are. This Court is bound by the precedent. Dr. Davis's
pleading is materially indistinguishable from Ms.
Blomker's. She also attached a mixed-bag letter from her
employer, which listed her intention to file an EEO complaint
and poor performance as reasons for her firing. Dr.
Davis's suing JRMC again was protected conduct. JRMC
shouldn't have relied on that action in deciding whether
to accept his application for restored staff privileges. But
a solid retaliation claim under Title VII or 42 U.S.C. §
1981 requires a plausible allegation that JRMC's reliance
on the lawsuit was the 'but-for' cause of its
rejection. "It is not enough that retaliation was a
'substantial' or 'motivating' factor in the
[hospital's] decision." Blomker, 831 F.3d
at 1059 (quotation omitted); see also Wright v. St.
Vincent Health System, 730 F.3d 732, 738 n.5 (8th Cir.
2013). JRMC's other reasons for its decision, reflected
in the letter, stop Dr. Davis's federal retaliation claim
at the door.
Davis has worked mightily to avoid this conclusion. After
defendants responded to his complaint with a
Blomker-based motion to dismiss, Dr. Davis amended
his pleading, adding the allegations about the letter being
partly false and about the current doctors, essentially
offering comparators. And he argues that Blomker
breaks faith with other precedent and draws courts into the
merits too early. None of these efforts, though, saves Dr.
Davis's federal claim.
the letter. It is part of Dr. Davis's pleadings. As with
his factual allegations, the Court must take what JRMC's
letter says as the truth. So there's clash between the
amended complaint (the letter's true about JRMC's
relying on the lawsuit, but otherwise false) and the
incorporated document. While not unusual, these circumstances
call for the plaintiff to plead more; he must give some
factual particulars to show a plausible claim. Dr.
Davis's plea of partial falsity is a matter of fact, not
law. But it is conclusory. It's unsupported by any
details. He did not say, for example, that he actually has
recently worked on call, served on hospital committees, or
performed enough heart procedures. In the absence of
particulars, the Court is left with the letter -the (assumed)
truth of the whole letter, as in Blomker.
the comparators. They don't stand up. Neither of them
applied for restored privileges. While the bar for
considering alleged comparators at the pleading stage must be
low, Dr. Davis hasn't cleared it with his allegations
about Dr. Dharamsey's and Dr. Boast's deficiencies.
the applicable precedent. Dr. Davis is partly wrong and
partly right. The Court sees no inconsistencies. But the
governing law is moving toward closer scrutiny of cases at
the pleading stage, scrutiny informed by the law on the
merits. Blomker, 831 F.3d at 1055-56.
Blomker and related cases are persuasive but not
binding authority on the meaning of the Arkansas Civil Rights
Act. ARK. CODE ANN. § 16-123-105(c). As Dr. Davis points
out, Arkansas's causation standard for a solid
retaliation claim is unsettled. The Court therefore declines
to exercise jurisdiction over this state law claim. 28 U.S.C.
§ 1367(c); Williams v. Hobbs, 658 F.3d 842, 853
(8th Cir. 2011) . Like the FOIA claim, it will be dismissed
without prejudice. Gregory v. Dillard's, Inc.,
565 F.3d 464, 477 (8th Cir. 2009) (en banc).
to dismiss, No. 19 & 30, granted as ...