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Fry v. Ascension Health Ministry Services

United States District Court, E.D. Wisconsin

March 22, 2019

WILLIAM L. FRY, Plaintiff,
v.
ASCENSION HEALTH MINISTRY SERVICES d/b/a COLUMBIA ST. MARY'S, Defendant.

          DECISION AND ORDER ON DEFENDANT'S MOTION FOR PARTIAL DISMISSAL OF SECOND AMENDED COMPLAINT

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         William Fry sues his former employer, Ascension Health Ministry Services, d/b/a Columbia St. Mary's (“Columbia”), for discrimination based on sexual orientation in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 (Count One), religious discrimination in violation of Title VII and the First Amendment (Count Two), retaliation for opposing sex and religious discrimination in violation of Title VII and § 1981 (Count Three), age discrimination in violation of the Age Discrimination in Employment Act of 1967 (Count Four), negligent supervision (Count Five), and violation of the Wisconsin Fair Employment Act (Count Six). (Second Am. Compl., Docket # 23.)

         Columbia moves to dismiss, with prejudice, Count Two, Count Three, Count Five, Count Six, and any claims alleged under § 1981 and the First Amendment for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Fry has not opposed the motion. For the reasons that follow, Columbia's motion to dismiss is granted.

         BACKGROUND

         Fry is an adult male whose “sexual orientation is homosexual, and his religious affiliation is Christian, but he is not Catholic.” (Second Am. Compl. ¶ 9.) Fry is a devout member of the Episcopal church. (Id.) Fry alleges that Columbia is a not-for-profit hospital corporation and Ascension is the largest Catholic healthcare system in the world. (Id. ¶ 10.) Fry alleges that Columbia is governed by religious rules developed by the Catholic Church and its stated mission is to follow the teachings of the Catholic Church. (Id. ¶¶ 11-12.)

         Fry, a registered nurse, was employed by Columbia as a Director of Patient Services for Behavioral Health until he was demoted on May 5, 2017 by his direct supervisor, Kathy McEwen. (Id. ¶ 13.) Fry was ultimately terminated from employment on May 15, 2017 by McEwen. (Id. ¶ 18.) Fry alleges that despite stellar reviews of his job performance, McEwen demoted and ultimately terminated him and he was replaced with a younger individual. (Id. ¶ 21.) Fry alleges that during his employment at Columbia, he was subjected to harassment and derogatory comments based on his sexual orientation. (Id. ¶ 27.) Fry alleges that he was ultimately terminated from employment due to his sexual orientation. (Id. ¶ 34.)

         Fry further alleges that he was discriminated against based on his religion because Columbia has a policy of praying before certain meetings, which made Fry uncomfortable because Episcopalians are not comfortable with public displays of prayer outside the church. (Id. ¶¶ 22, 41.) Fry alleges that he was terminated from his employment because of his religious affiliation. (Id. ¶ 46.) Fry alleges that he complained to Columbia about McEwen's conduct and was retaliated against for opposing sex and religious discrimination in the workplace. (Id. ¶¶ 50-51.)

         Fry also alleges that he was discriminated against based on his age. (Id. ¶ 58.) Fry was fifty-six years old at the time of his demotion and termination. (Id. ¶ 19.) Finally, Fry alleges that McEwen and Columbia were negligent (id. ¶ 62) and Columbia violated the Wisconsin Fair Employment Act (id. ¶¶ 71-74).

         STANDARD OF REVIEW

         A motion to dismiss under Fed.R.Civ.P. 12(b)(6) challenges the sufficiency of the complaint on the basis that the plaintiff has failed to state a claim upon which relief can be granted. A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Supreme Court has interpreted this language to require that the plaintiff plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Ashcroft v. Iqbal, the Supreme Court elaborated further on the pleadings standard, explaining that a “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, ” though this “standard is not akin to a ‘probability requirement.'” 556 U.S. 662, 678 (2009). The allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal citation omitted).

         When determining the sufficiency of a complaint, the court should engage in a two-part analysis. See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). First, the court must “accept the well-pleaded facts in the complaint as true” while separating out “legal conclusions and conclusory allegations merely reciting the elements of the claim.” Id. (citing Iqbal, 556 U.S. at 680). Next, “[a]fter excising the allegations not entitled to the presumption [of truth], [the court must] determine whether the remaining factual allegations ‘plausibly suggest an entitlement to relief.'” Id. (citing Iqbal, 556 U.S. at 681). As explained in Iqbal, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” 556 U.S. at 679.

         ANALYSIS

         Columbia moves to dismiss, with prejudice, Count Two, Count Three, Count Five, Count Six, and any claims alleged under § 1981 and the First Amendment for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Columbia does not seek to dismiss Count One (to the extent it alleges a violation of Title VII) or Count ...


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