Rangarajan v. Johns Hopkins Health System Corp. et al

Filing 48

MEMORANDUM. Signed by Judge William M Nickerson on 11/21/2014. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

MITRA RANGARAJAN
v.
JOHNS HOPKINS HEALTH SYSTEM
CORP. et al.
*

*

*

*

*

*

*

*
*
*
*
*
*
*
*

Civil Action No. WMN-12-1953

*

*

*

*

*

*

*

MEMORANDUM
Pending before the Court is Defendants’ Partial Motion to
Dismiss Plaintiff’s Complaint.
briefed and ripe for review.

ECF No. 27.

The motion is fully

Upon a review of the pleadings and

the applicable law, the Court determines that no hearing is
necessary, Local Rule 105.6, and that Defendants’ Partial Motion
to Dismiss will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Mitra Rangarajan, a former nurse practitioner at
Johns Hopkins, originally brought this action as a putative
relator under the False Claims Act alleging fraudulent Medicare
billing and wrongful retaliation by Defendants Johns Hopkins
Health System Corporation, Johns Hopkins University, John
Hopkins Hospital, and Dr. Anthony Kalloo, Plaintiff’s former
supervisor, in his individual capacity.

Plaintiff voluntarily

dismissed her fraudulent billing claims and amended her
complaint to include additional retaliatory claims concerning

Defendants’ post-termination conduct.

The factual allegations

in the First Amended Complaint, however, remained largely
unchanged and are as follows.
In November 2007, Plaintiff was hired by Defendants as a
nurse practitioner in the Division of Gastroenterology and
Hepatology.

Incident to her employment, Plaintiff, and other

similarly situated nurse practitioners, routinely handled office
visits with patients.

Plaintiff alleges, however, that

Defendants wrongfully billed for office visits handled by nurse
practitioners as if they were handled by physicians.

Plaintiff

discussed her billing concerns with Dr. Kalloo in December 2007,
and raised the issue again in February and March of 2008 with
Ms. Boldin, the Senior Administrative Manager for the division.
In response, Ms. Boldin allegedly told Plaintiff that if she
continued to raise billing concerns she would jeopardize her
job.
Plaintiff, however, persisted.

She raised the issue to Dr.

Kalloo again in May and October of 2008, and to Ms. Boldin in
April and July of 2009.
divisions.

Plaintiff also sought help from other

She reported wrongful billing practices to the Human

Resources Director in April 2009, a Billing Specialist in
November 2009, and an employee of the Office of Institutional
Equity in September 2010.

Overall, Plaintiff alleges that she

reported fraudulent billing practices “on at least eighteen
2

separate occasions” to Defendants’ employees.

ECF No. 46 at 2.

In retaliation for her diligent reporting, Plaintiff alleges
that she was constructively terminated on May 6, 2011.
On June 22, 2011, Plaintiff was hired at Franklin Square
Hospital (“FSH”) contingent on her completion of the hospital’s
credentialing process.

In the ensuing months, Plaintiff

successfully passed FSH investigations, rebutted an accusation
that Defendants subjected her to disciplinary action, and was
set to obtain credentials.

At this time, an FSH employee

informed Plaintiff that Dr. Kalloo had still not responded to
requests for an evaluation and that the credentialing committee
would decide Plaintiff’s case with or without Dr. Kalloo’s
feedback.

Plaintiff alleges that on the last day before the

credentialing committee meeting, Dr. Kalloo provided a false and
defamatory evaluation causing FSH to deny her credentials and
rescind its offer of employment.

After the meeting, Plaintiff

alleges that a FSH doctor told her that she would need to “clear
her name” and obtain a good recommendation from Dr. Kalloo to
procure employment at any hospital.

First Am. Compl. ¶ 134, ECF

No. 5.
On October 13, 2011, Plaintiff was hired at the Greater
Baltimore Medical Center (“GBMC”), again contingent on receiving
hospital credentials.

Plaintiff alleges that GBMC subjected her

application to intense scrutiny including an abnormally high
3

number of background checks, and that her credentialing was
again frustrated by a negative reference from Defendants.
Plaintiff alleges a GBMC Human Resources employee informed her
that “[GBMC] do[es]n’t want people like [Plaintiff] working
[there].”

Id. ¶ 141.

Neither FSH nor GBMC would tell Plaintiff

the nature of Dr. Kalloo’s negative reference.
With the dismissal of Plaintiff’s fraudulent billing
claims, the following claims remain: a retaliation claim under
§ 2-607(a) of the Health-General Article of the Maryland Code
(Count III); a retaliation claim under the Federal False Claims
Act (Count IV); a defamation claim (Count V); a tortious
interference with prospective business advantages claim (Count
VI); and a false light claim (Count VII).

Defendants now move

to dismiss Counts III and VII as to all Defendants, and Count IV
as against Defendant Kalloo.

Not challenged in this motion are

Count IV as it relates to non-supervisor Defendants, Count V,
and Count VI.
II. LEGAL STANDARDS
A complaint must be dismissed if it does not allege “enough
facts to state a claim to relief plausible on its face.”
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Bell

Under the

plausibility standard, a complaint must contain “more than
labels and conclusions” or a “formulaic recitation of the
elements of a cause of action.”

Id. at 555.
4

Rather, the

complaint must be supported by factual allegations, “taken as
true," that “raise a right to relief above the speculative
level.”

Id. at 555–56.

The Supreme Court has explained that

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice” to
plead a claim.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The plausibility standard requires that the pleader show
more than a sheer possibility of success, although it does not
impose a “probability requirement.”

Twombly, 550 U.S. at 556.

Instead, “[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.”

Iqbal, 556 U.S. at 663.

Thus, a court

must “draw on its judicial experience and common sense” to
determine whether the pleader has stated a plausible claim for
relief.

Id. at 664; see also Brockington v. Boykins, 637 F.3d

503, 505–06 (4th Cir. 2011).
III. DISCUSSION
A. Count III - Maryland Health Care Worker Whistleblower
Protection Act
Defendants move to dismiss Count III, wrongful retaliation
under the Maryland False Claims Act, arguing that this act
expressly does not apply to licensed health care workers, which
instead are protected under a separate section of the Maryland
5

Code.

See Md. Code Ann., Health-Gen. § 2-607(c) (West 2014)

(“This section does not apply to an employee as defined in § 1501 of the Health Occupations Article.”); see also Md. Code
Ann., Health Occ. § 1-501(c) (West 2014) (including in the
definition of “employee” “any individual licensed or certified
by a board under this article”).

Plaintiff, in opposition,

concedes the issue and seeks leave to amend to assert a claim
under the Maryland Health Care Worker Whistleblower Protection
Act, Md. Code Ann., Health Occ. §§ 1-501–506 (West 2014) (the
Act).

Defendants, however, counter that amendment would be

futile.
Defendants argue that Plaintiff’s claim under the Act is
time-barred because she was constructively terminated outside
the one-year statute of limitations, and, furthermore, that
Plaintiff has not alleged facts to establish “a substantial and
specific danger to the public health or safety” as required by
the Act.
2014).

Md. Code Ann., Health Occ. §§ 1-503 to 504 (West

In response, Plaintiff concedes that relief for her

constructive termination is time-barred, but argues that she can
state a cognizable claim based upon Defendants’ other, posttermination, retaliatory acts.

Plaintiff further argues that

her allegations of inadequate supervision comprise a substantial
and specific danger to public safety per § 1-503 of the Act.

6

The Court finds that even if the claim is not time barred,1
Plaintiff has not pled sufficient facts to implicate public
safety.
Of the eighteen occasions detailed in her seventy page
complaint, Plaintiff cites only three that arguably relate to
public safety: (1) a nurse practitioner performing unsupervised
colonoscopies, (2) fellows performing unsupervised procedures,
and (3) an unlicensed foreign doctor practicing medicine.

With

regard to all three, Defendants argue that the “dangers”
associated with these practices were never alleged and,
furthermore, that Plaintiff’s disclosures never relayed any
concerns of safety.

First, Defendants argue that, per the

Complaint, nurse practitioners were authorized to perform
colonoscopies and therefore were not a danger to public safety.
Second, Defendants note that nothing in the Complaint suggests
that the unsupervised fellows were dangerous or unqualified to

1

Though unnecessary to its holding, the Court notes that
persuasive authority indicates that post-termination retaliatory
action may fall within the scope of “personnel action” protected
by Md. Code Ann., Health Occ. § 1-502 (West 2014). See
Kissinger-Campbell v. Harrell, No. 8:08-cv-568-T-27TBM, 2009 WL
103274, at *6–7 (M.D. Fla. Jan. 14, 2009) (interpreting
substantially similar Florida whistleblower statute to cover
post-termination retaliation); see also Robinson v. Shell Oil
Co., 519 U.S. 337, 346 (1997) (holding that Title VII of the
Civil Rights Act of 1964 allows suit for post-termination
retaliatory discrimination). But see Beck v. Tribert, 711 A.2d
951, 955–57 (N.J. Super. Ct. App. Div. 1998) (interpreting
analogous New Jersey statute to not extend to post-employment
retaliation).
7

perform the alleged procedures.

Rather, the impetus of

Plaintiff’s disclosure of the unsupervised procedures was that
the supervisors were allegedly billing.

Third, while Defendants

do not contest the dangers associated with an unlicensed
physician, they assert that Plaintiff’s disclosure only related
to fraudulent billing.

The Court notes that, per the Complaint,

Plaintiff reported the unlicensed physician only after the
physician had been terminated and the safety risk had abated.
See First Am. Compl. ¶¶ 117, 216.
The Court additionally notes that two of the Plaintiff’s
alleged disclosures were not made to a “supervisor” or “board”
pursuant to Md. Code Ann., Health Occ. §§ 1-501 - 1-502 (West
2014).

The only alleged reporting of both the unsupervised

colonoscopies and the unlicensed physician was to Allison Boyle
of the Office of Institutional Equity.
¶ 117.

See First Am. Compl.

The Court notes that the report of unsupervised fellows

was allegedly made to a supervisor, see id. ¶ 219, however,
Plaintiff’s concern was that the patient had specifically
requested another physician, not that the procedure was unsafe.
The Court finds that the only danger Plaintiff alleged was the
depletion of Medicare’s coffers, which, without more, does not
pose a substantial danger to public safety.

8

B. Count IV – Supervisor Liability Under the False Claims
Act, 31 U.S.C. § 3730(h) (2012)
Defendants move to dismiss Count IV against Dr. Kalloo
arguing that supervisors are not liable for retaliatory actions
under 31 U.S.C. § 3730(h) (2012).

Defendants concede that

recent amendments expanded the scope of the anti-retaliatory
provision, but argue that the extent of the expansion is
ambiguous and that Congress did not intend to extend liability
to supervisors.

In opposition, Plaintiff contends that, under

the “Plain Meaning Rule,” the current version of 31 U.S.C.
§ 3730(h) (2012) unambiguously permits a cause of action against
“any person who retaliates against him/her ‘in the terms and
conditions of employment.’”

ECF No. 46 at 13–14.

In 2009, Congress amended the “[r]elief from retaliatory
actions” provision codified in 31 U.S.C. § 3730(h) to exclude
language that limited relief to retaliatory actions “by [an]
employer.”2

Fraud Enforcement and Recovery Act of 2009, Pub. L.

2

The prior version provided that:
Any employee who is discharged, demoted, suspended,
threatened, harassed, or in any manner discriminated
against in the terms and conditions of employment by his or
her employer because of lawful acts done by the employee on
behalf of the employee or others in furtherance of an
action under this section, . . . shall be entitled to all
relief necessary to make the employee whole.
False Claims Act of 1986, Pub. L. No. 99-562, § 4, 100 Stat.
3153, codified at 31 U.S.C. § 3730(h) (1988) (emphasis added).
9

No. 111–21, § 4(d), 123 Stat. 1617, 1624–25.

The current

version of the statute states that:
Any employee, contractor, or agent shall be entitled to all
relief necessary to make that employee, contractor, or
agent whole, if that employee, contractor, or agent is
discharged, demoted, suspended, threatened, harassed, or in
any other manner discriminated against in the terms and
conditions of employment because of lawful acts done by the
employee, contractor, agent or associated others in
furtherance of an action under this section.
31 U.S.C. § 3730(h) (2012) (emphasis added).

The parties do not

dispute that the congressional intent for the amendment was to
“correct[] loophole[s]” and “assist individuals who are not
technically employees . . . , but nonetheless have a contractual
or agent relationship with an employer.”

False Claims Act

Correction Act of 2008, S. Rep. No. 110-507, at 26–27 (2008);
see also False Claims Act Correction Act of 2009, H.R. Rep. No.
111-97, at 14 (2009) (explaining that the statute was amended to
protect “contract workers and others who are not technically
‘employees’”).

The parties also do not dispute that the pre-

2009 version of the provision was generally accepted by courts
to preclude supervisor liability.

See, e.g., United States ex

rel. Yesudian v. Howard Univ., 270 F.3d 969, 972 (D.C. Cir.
2001); Zahodnick v. Int’l Bus. Machs. Corp., 135 F.3d 911, 914
(4th Cir. 1997).

The deletion of “by his or her employer” is

consistent with the stated Congressional intent to protect non-

10

employees; Congress is silent, however, on whether the deletion
expands the class of potential tortfeasors.
District courts have split as to whether the 2009 Amendment
creates supervisor liability.

See Perez-Garcia v. Dominick, No.

13 C 1357, 2014 WL 903114, at *5 (N.D. Ill. Mar. 7, 2014)
(ruling with the majority of districts that 31 U.S.C. § 3730(h)
does not establish supervisor liability); Lipka v. Advantage
Health Grp., Inc., No. 13–CV-2223, 2013 WL 5304013, at *11–12
(D. Kan. Sept. 20, 2013) (same); Russo v. Broncor, Inc., No. 13–
cv–348–JPG–DGW, 2013 WL 7158040, at *6 (S.D. Ill. July 24, 2013)
(same); Howell v. Town of Ball, Civil Action No. 12-951, 2012 WL
6680364, at *2 (W.D. La. Dec. 21, 2012) (same); Aryai v.
Forfeiture Support Assocs., LLC, No. 10 Civ. 8952(LAP), 2012 WL
10911406 (S.D.N.Y. Aug. 27, 2012) (same); United States ex rel.
Abou–Houssein v. Science Applications Int’l Corp., No. 2:09–
1858–RMG, 2012 WL 6892716, at *3 (D.S.C. May 3, 2012) (same).
But see Weihua Huang v. Rector and Visitors of Univ. of Va., 896
F. Supp. 2d 524, 548 n.16 (W.D. Va. 2012) (interpreting the
deletion of employer to “le[ave] the universe of [potential]
defendants undefined and wide-open”); U.S. ex rel. Moore v.
Cmty. Health Servs., Inc., No. 3:09CV1127 JBA, 2012 WL 1069474,
at *9 (D. Conn. Mar. 29, 2012) (same); Laborde v. Rivera–Dueno,
719 F. Supp. 2d 198, 205 (D.P.R. 2010) (same).
circuit court has considered the issue.
11

To date, no

This Court looks to the well-reasoned decision in Aryai as
relied upon in Perez, Lipka, and Russo.

In Aryai, the court

found ambiguity in the conflict between well-established
precedent and the 2009 Amendment, and looked to legislative
history to ascertain Congressional intent.

2012 WL 10911406, at

*7 (quoting FTC v. Jantzen, Inc., 386 U.S. 228, 234–35 (1967)),
(“When considering amendments to legislation, courts ‘must read
the Act as a whole . . . [and cannot] ignore the common sense,
precedent, and legislative history of the setting that gave it
birth.’”).

The court reasoned that “Congress's expressed

purpose in amending section 3730(h) was to expand the class of
potential plaintiffs.”

Id. at 8. (referencing H.R. Rep. No.

111–97, at 14 (2009)).

“Congress was silent on the issue of the

class of potential defendants,” but importantly chose not to
“substitute ‘person’ for ‘employer’” to expressly create
individual liability as it had in “several anti-retaliation
statutes.”

Id. at *7–8.

The court concluded that:

Where Congress expressly stated its intent to expand the
definition of a whistleblower and added specific language
to effectuate that intent, it strains common sense to read
Congress's silence in the same sentence of the statute as
effectuating an unexpressed intent to expand the class of
defendants subject to liability under the statute.
Id. at *8.
The court further noted that Congress did not amend the
mandatory remedy under which “[r]elief . . . shall include

12

reinstatement.”

31 U.S.C. § 3730(h)(2) (2012) (emphasis added).

This mandatory remedy, “[that] a mere supervisor could not
possibly grant,” was cited in rejecting individual liability
under the pre-amendment version of section 3730(h) and the court
found that logic remains sound in interpreting the amended
version.

Id. (quoting Yesudian, 270 F.3d at 972).

Accordingly,

the court found the deletion a “grammatical necessity of
expanding the statute's protections” that does not provide a
cause of action against individuals.

Id.; accord Russo, 2013 WL

7158040, at *6 (“[T]he more likely reason for omitting
‘employer’ from the statute is to avoid confusion when an action
is brought by a contractor or agent. . . .

Retaliation against

these two classes would not be by an ‘employer.’”).
This Court notes that the three decisions allowing
individual liability under 31 U.S.C. § 3730(h) — Weihua Huang,
Moore, and Laborde — all pre-date the current trend and lack any
discussion of legislative history.

Furthermore, in each case,

the issue of supervisor liability was either not in dispute or
appears to have been inadequately briefed.

See Weihua Huang,

896 F. Supp. 2d at 548 n.16 (noting that defendants do not
challenge the FCA claims); Moore, 2012 WL 1069474, at *9
(considering only out-dated pre-amendment authority); Laborde,
719 F. Supp. 2d at 205 (rejecting the defendant’s out-dated preamendment authority).
13

This Court finds Aryai persuasive and adopts its reasoning.
Contrary to Plaintiff’s contention, the Court is not compelled
by the Plain Meaning Rule to read the amended statute in a
vacuum.

The Court finds ambiguity both in Congress’s silence as

to tortfeasors and the unavoidable contradiction between
supervisor liability and a mandatory reinstatement remedy.
Following the majority of courts that have ruled on the issue,
this Court concludes that 31 U.S.C. § 3730(h) does not create a
cause of action against supervisors in their individual
capacity.
C. Count VII - False Light
To state a claim for false light invasion of privacy, a
plaintiff must assert:
(1) that the defendant gave publicity to a matter
concerning another that places the other before the public
in a false light; (2) that the false light in which the
other person was placed would be highly offensive to a
reasonable person; and (3) that the actor had knowledge of
or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the other
would be placed.
Campbell v. Lyon, 26 F. App'x 183, 188 (4th Cir. 2001) (quoting
Bagwell v. Peninsula Reg'l Med. Ctr., 665 A.2d 297, 318 (Md.
1995) (internal quotation marks omitted).

To satisfy the first

element, Defendants’ disclosure of a private fact must be made
to the “public at large,” not only “to a single person or even
to a small group of people.”

Henderson v. Claire's Stores,

14

Inc., 607 F. Supp. 2d 725, 733 (D. Md. 2009) (citing Pemberton
v. Bethlehem Steel Corp., 502 A.2d 1101, 1118 (Md. 1986)); see
also Mazer v. Safeway, Inc., 398 F. Supp. 2d 412, 431 (D. Md.
2005) (quoting Restatement (Second) of Torts § 652D cmt. a
(1977)) (“‘Publicity’ . . . means that the matter is made
public, by communicating it to . . . so many persons that the
matter must be regarded as substantially certain to become one
of public knowledge.”).
Defendants move to dismiss Count VII arguing that Plaintiff
has not plausibly alleged the public disclosure element of a
false light claim.

Plaintiff responds, arguing that Defendants

made false and defamatory statements “throughout the Baltimore
medical community.”

ECF No. 46 at 14.

Plaintiff specifically

alleges that Defendants made false and defamatory statements to:
1) “the Franklin Square Hospital (“FSH”) credentialing office
and committee” and 2) “the Greater Baltimore Medical Center
(“GBMC”) GI department, credentialing department, and human
resources office.”3

Id.

In Byington v. NBRS Financial Bank and Williams v. Wicomico
County Board of Education this Court specifically held that
3

Plaintiff further alleges that Defendants disseminated false
statements to the medical personnel at Johns Hopkins, including
Dr. Bayless. Id. (citing First Am. Compl. ¶ 144). As the
Defendants note, however, the Complaint alleges that “‘GBMC
officials told Dr. Bayless’” that Dr. Clarke and/or Dr. Canto made
disparaging comments about Plaintiff. ECF No. 47 at 2 (quoting
First Am. Compl. ¶ 144 (emphasis added by Defendants)).
15

disclosure to “a small group of potential employers” does not
constitute the “public at large.”

In Byington, the plaintiff

alleged that she was falsely accused of check kiting by her
former employer and was forced to “publish” the incident on
every subsequent employment application.

Byington v. NBRS Fin.

Bank, 903 F. Supp. 2d 342, 353 (D. Md. 2012).

The court

dismissed the false light claim finding that this communication
to “a small group of potential employers” does not satisfy the
publicity element.

Id.

In Williams, a high school teacher

alleged that his former employer disclosed a “ruled out”
incident of child abuse to three Maryland school systems
preventing him from securing a job.

Williams v. Wicomico Cnty.

Bd. of Educ., 836 F. Supp. 2d 387, 390 (D. Md. 2011).

The court

dismissed the false light claim finding that the plaintiff
failed to sufficiently allege the element of “public knowledge.”
Id. at 398.
Plaintiff argues that Williams is distinguishable because
the plaintiff “did not include any allegations claiming his
private information was made a matter of ‘public knowledge.’”
EFC No. 46 at 15 (quoting Williams, 836 F. Supp. 2d at 398).
This Court, however, does not read Williams to foreclose false
light claims simply because the complaint fails to make
conclusory statements of the elements.

Rather, this Court

interprets Williams to hold that allegations of false
16

disclosures to three prospective employers did not equate to
public knowledge for purposes of a false light claim.

In dicta,

the court in Williams further reasoned that “even if Defendants
conveyed the private information to numerous school systems and
others,” the plaintiff would need to assert additional facts
indicating that the information had become public knowledge.
Similar to Byington and Williams, this Court finds that
Defendants’ alleged disclosures to two potential employers
constitute disclosures to a “small group of people” and not to
the “public at large.”

While Plaintiff asserts in her

Opposition that Defendants defamed her “throughout the Baltimore
medical community,” she does not assert this conclusory
statement in the First Amended Complaint, nor does she allege
sufficient factual support for that conclusion.

Accordingly,

the false light claim will be dismissed.
IV. CONCLUSION
For the above-stated reasons, the Court will grant
Defendants’ Partial Motion to Dismiss.

A separate order will

issue.

_________/s/_______________________
William M. Nickerson
Senior United States District Judge

DATED: November 21, 2014.

17