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Favaloro v. BJC Healthcare

United States District Court, E.D. Missouri, Eastern Division

January 8, 2018

BJC HEALTHCARE, et al., Defendants,



         This matter is before the Court on the separate motions to dismiss filed by Defendants BJC Healthcare, Barnes-Jewish Hospital, Rhonda Brandon, Richard Leikweg, David Jaques, M.D., John Beatty, Colleen Becker, Christine Ramatowski, Mike Miller, and Jennifer Horst (collectively, “BJC Defendants”) (ECF No. 45); the Honorable Charles Shaw (ECF No. 19); and BJH Department of Surgical Services (ECF No. 27). For the reasons set forth below, Defendants' motions to dismiss will be granted.


         Plaintiff worked for Defendant Barnes-Jewish Hospital (“BJH”) from approximately 2004 until her employment was terminated on February 16, 2012. On August 11, 2012, Plaintiff filed a Charge of Discrimination with the Missouri Commission on Human Rights (“MCHR”) and the Equal Employment Opportunity Commission (“EEOC”), asserting discrimination the basis of race and color, as well as retaliation. On October 16, 2013 and November 14, 2013, respectively, the MCHR and EEOC issued notices of her right to file a civil action within 90 days.

         Favaloro I

         On February 18, 2014, Plaintiff, through counsel, filed a lawsuit in this district against Defendants BJC Healthcare, BJH, Rhonda Brandon (BJC chief of human resources officer), David Jacques, M.D. (BJH vice president of surgical services), John Beatty (BJH vice president of human resources), Colleen Becker (director of perioperative services), and “Does 1-100, ” styled Sally K. Favaloro v. BJC Healthcare, et al., 4:14-cv-00284-CAS (“Favaloro I”), with the Honorable Charles Shaw presiding. Plaintiff asserted seven causes of action, including whistleblower wrongful termination, Family Medical Leave Act interference and retaliation, retaliation under the Missouri Human Rights Act (“MHRA”) and Title VII, discrimination under the MHRA and the Americans with Disabilities Act, conspiracy, defamation, and negligence per se. All of the claims asserted in Favaloro I arose from Plaintiff's employment from 2004 until 2012, and she claimed that each defendant was an agent and/or employee of every other defendant.

         On October 20, 2014, Plaintiff filed a first amended complaint adding the remaining BJC Defendants Richard Leikweg (BJH president), Christine Ramatowski (BJC attorney), Mike Miller (BJH human resources employee), and Jennifer Horst (BJH human resources employee).[1] Like her original complaint, the first amended complaint asserted claims arising out of Plaintiff's employment with BJH between 2004 and 2012. The 129-page first amended complaint contained six “claim sets, ” with each containing multiple sub-claims. The “claim sets” included whistleblower protection law claims, federal law claims, Missouri statutory law claims, Missouri negligence per se claims, and other Missouri common law claims.

         On January 8, 2015, Judge Shaw held that Plaintiff's first amended complaint violated Federal Rule of Civil Procedure 8 and directed Plaintiff to file a second amended complaint. Plaintiff filed a motion for leave to file a second amended complaint, but Judge Shaw denied the motion because the second amended complaint failed to cure the defects present in the first amended complaint. Judge Shaw then directed the defendants to file responsive pleadings to the originally-filed complaint.

         The defendants filed a partial motion to dismiss and answered the remaining claims. On May 15, 2015, Plaintiff filed a motion for withdrawal of counsel and proceeded pro se. Plaintiff then filed a pleading titled “first amended complaint, ”[2] which, as far as this Court is able to determine, added a number of factual allegations to the second amended complaint. Judge Shaw struck the third amended complaint from the record and ordered Plaintiff to respond to the pending motions to dismiss. Plaintiff failed to do so.

         On October 28, 2015, Judge Shaw granted in part and denied in part the defendants' motion to dismiss. Specifically, Judge Shaw dismissed Plaintiff's MHRA and ADA claims, as well as the Title VII claims against Defendants Rhonda Brandon, Richard Leikweg, David Jaques, M.D., John Beatty, and Colleen Becker. The Court then directed the defendants to answer the complaint.[3] The next day, Judge Shaw ordered Plaintiff to show cause why sanctions should not be imposed against her for failure to comply with his order requiring the submission of a joint proposed scheduling plan. Plaintiff then filed a number of pro se motions and notices seeking the disqualification of Judge Shaw, as well as orders requiring Judge Shaw to obey the United States Constitution, the Missouri Constitution, and the Federal Rules of Civil Procedure.

         On June 30, 2016, Judge Shaw dismissed with prejudice Plaintiff's cause of action and all of her claims against the defendants for her failure to comply with a court order. Plaintiff appealed the decision to the Eighth Circuit, which deemed her notice of appeal untimely. It directed Plaintiff to seek an extension to file her appeal. Plaintiff instead argued that the Eighth Circuit was incorrect in determining that her appeal was untimely. On September 8, 2016, the Eighth Circuit dismissed Plaintiff's appeal for lack of jurisdiction.

         Favaloro II

         On February 14, 2017, Plaintiff filed her complaint in this lawsuit. Her 6-page pleading includes claims against Judge Shaw and an entity named “BJH Department of Surgical Services.” She alleges that the department is “BJC's flagship department.” ECF No. 1 at ¶1005.12. Plaintiff also incorporates by reference the third amended complaint filed in Favaloro I. Specifically, Plaintiff states that she previously filed the third amended complaint, which she calls the “2015 Complaint, ” and that “the 2015 Complaint is part of this 2017 Complaint for all purposes” and that “each statement in the 2015 Complaint is adopted by reference into this 2017 Complaint.” ECF No. 1 at ¶1002.4.

         On July 13, 2017, Defendant the Honorable Charles Shaw filed a motion to dismiss on the basis of judicial immunity. ECF No. 19. On July 17, 2017, the BJC Defendants filed motions to dismiss on the basis that Plaintiff's claims against them were barred by the doctrine of res judicata. ECF No. 24. Defendant BJH Department of Surgical Services filed a motion to dismiss on July 28, 2017, contending that Plaintiff failed to sufficiently plead that it is a legal entity capable of being sued under Missouri and federal law, that Plaintiff failed to state a ...

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