Daniels v. University of Maryland Rehabilitation and Orthopaedic Institute

Filing 19

MEMORANDUM. Signed by Judge William M Nickerson on 9/29/2015. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHELLE JOANN DANIELS
Plaintiff
v.
JAMES LAWRENCE KERNAN
HOSPITAL, INC.
DBA: UNIVERSITY OF MARYLAND
REHABILITATION AND
ORTHOPEDIC INSTITUTE et al.,
Defendants
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Civil Action No. WMN-15-255

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MEMORANDUM
Before the Court are two motions: (1) Defendants’ Partial
Motion to Dismiss the Amended Complaint, ECF No. 13; and (2)
Plaintiff’s Motion for Leave to File Surreply, ECF No. 18.

Upon

review of the parties’ submissions and the applicable case law,
the Court determines that no hearing is necessary, Local Rule
105.6, and that both motions will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Michelle Daniels brings this action against her
former employer, Defendant University of Maryland Rehabilitation
and Orthopaedic Institute, 1 asserting: race and color
discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), 42 U.S.C. § 2000e, et seq. (Count I),

1

Defendant University of Maryland Rehabilitation and Orthopaedic
Institute, formerly the James Lawrence Kernan Hospital, is part
of the University of Maryland Medical System Corporation. For
simplicity, the Court will refer to both parties as “Defendant.”

retaliation in violation of the False Claims Act (FCA), 31
U.S.C. § 3730(h) (Count II), and a claim for wrongful discharge
under Maryland law (Count III).

Defendant moves to dismiss the

claim of color discrimination in Count I on the ground that
Plaintiff failed to exhaust her administrative remedies with the
Equal Employment Opportunity Commission (EEOC). 2

Further,

Defendant moves to dismiss Count III, asserting that Plaintiff
fails to identify a clear mandate of public policy violated by
her discharge that is not remedied by the FCA.
Plaintiff was hired by Defendant as a Staff Physical
Therapist in 1996.

Plaintiff was promoted several times

throughout her career, most recently to Patient Therapy Manager
in 2010.

Including Plaintiff, Defendant had four Patient

Therapy Managers.

Plaintiff was the only African American

Patient Therapy Manager whereas the other three were Caucasian.
Plaintiff alleges that, in March 2013, she discovered
Defendant was defrauding Medicare by engaging in a practice
known as “flipping.”

Generally, Medicare pays for up to three

days of physical therapy services following a patient’s surgery.
Flipping occurs when a physician readmits a patient as an acute
care rehabilitation inpatient after only one or two days rather

2

Defendants’ Partial Motion to Dismiss does not address
Plaintiff’s claim of race discrimination in Count I.
2

than determining the need for further treatment after the
allotted three days of physical therapy.
Plaintiff alerted Defendant’s managers to this purported
Medicare fraud and told her staff not to participate in flipping
patients to the rehabilitation unit prior to their allotted
three days of physical therapy.

On June 19, 2013, Plaintiff’s

supervisor told Plaintiff her position was being eliminated due
to a reduction in force.
Manager terminated.

Plaintiff was the only Patient Therapy

Upon termination Plaintiff asked to be

considered for three open physical therapist jobs for which she
was qualified.

Defendant did not consider Plaintiff for the

open positions and instead hired two Caucasian physical
therapists.
Plaintiff filed a Charge of Discrimination with the EEOC
(EEOC charge) on December 4, 2013.

ECF No. 1-2.

On October 29,

2014, the EEOC mailed Plaintiff a Notice of Right to Sue.
No. 1-1.
29, 2015.

ECF

Plaintiff filed her Complaint in this Court on January
ECF No. 1.

II. MOTION TO DISMISS
A. Legal Standards
This motion is made pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).

“Because jurisdictional limits

define the very foundation of judicial authority, subject matter
jurisdiction must, when questioned, be decided before any other
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matter.”
2012).

United States v. Wilson, 699 F.3d 789, 793 (4th Cir.
“When a Rule 12(b)(1) motion challenge is raised to the

factual basis for subject matter jurisdiction, the burden of
proving subject matter jurisdiction is on the plaintiff.”
Richmond, Fredericksburg, & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991).

The court should grant a

12(b)(1) motion “only if the material jurisdictional facts are
not in dispute and the moving party is entitled to prevail as a
matter of law.”

Id.

Pursuant to Rule 12(b)(1), when a

defendant challenges subject matter jurisdiction “the district
court is to regard the pleadings’ allegations as mere evidence
on the issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary judgment.”
Id.
In evaluating a motion to dismiss filed pursuant to Rule
12(b)(6), the court must accept as true all well-pled
allegations of the complaint and construe the facts and
reasonable inferences derived therefrom in the light most
favorable to the plaintiff.
472, 474 (4th Cir. 1997).

Ibarra v. United States, 120 F.3d
To survive dismissal, "a complaint

must contain sufficient factual matter . . . to 'state a claim
to relief that is plausible on its face.'"

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).

"A claim has facial plausibility
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when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged."
Twombly, 550 U.S. at 556).

Iqbal, 556 U.S. at 678 (citing
A court need not accept a

plaintiff's legal conclusions as true, as "[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Id.

Thus,

"[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."

Id. at 679.

B. Title VII Claim
Title VII prohibits an employer from discriminating against
“any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.”
42. U.S.C. § 2000e-2(a)(1).

“Before a plaintiff has standing to

file suit under Title VII, he must exhaust his administrative
remedies by filing a charge with the EEOC.”

Bryant v. Bell Atl.

Maryland, Inc., 288 F.3d 124, 132 (4th Cir. 2002).

“The EEOC

charge defines the scope of the plaintiff’s right to institute a
civil suit.”

Id.

An EEOC charge “does not strictly limit a Title VII suit
which may follow; rather, the scope of the civil action is
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confined only by the scope of the administrative investigation
that can reasonably be expected to follow the charge of
discrimination.”

Chisholm v. United States Postal Serv., 665

F.2d 482, 491 (4th Cir. 1981).

On Plaintiff’s EEOC charge, she

checked the box for discrimination based on race, and wrote:
I believe I was discriminated against because of my
race, Black, for the following reasons: ... 2. I have
more experience, more qualifications and a longer
tenure than three Caucasian Patient Therapy Managers;
Andrea Garrett, Kimberly Goodman, Sheila Schaffer;
however, their position was not eliminated and they
were not terminated.
ECF No. 1-2.

Plaintiff did not check the box for discrimination

based on color.

ECF No. 1-2.

Plaintiff’s assertion that the text of her EEOC charge
plainly alleges discrimination on the basis of color
demonstrates her conflation of race and color discrimination. 3
Although the categories of race and color discrimination may
overlap, they are not synonymous.

Color discrimination occurs

when pigmentation, coloration, or skin shade or tone is the root
of discrimination.

“Color discrimination arises when the

particular hue of the plaintiff’s skin is the cause of the
discrimination, such as in the case where a dark-colored
3

Plaintiff directs the attention of the Court to ECF No. 16-1 to
demonstrate that the “EEOC understood Daniel’s complaint to
include color, when it listed ‘black’ on her charge detail
inventory sheet.” ECF No. 16 at 6. The word “black” only
appears once on this exhibit under the heading of race, a prime
example of Plaintiff’s treatment of color and race
discrimination as if they were one category.
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African-American individual is discriminated against in favor of
a light-colored African-American individual.”

Bryant, 288 F.3d

at 132 n.5 (citing Walker v. Sec’y of the Treasury, Int’l
Revenue Serv., 713 F. Supp. 403, 406-407 (N.D. Ga. 1989)).
Plaintiff’s allegations are “devoid of any hint that [her]
particular skin tone motivated the alleged discrimination.”

Id.

In fact, Plaintiff’s EEOC charge clearly states that she was
discriminated against due to “race, Black,” when she was
terminated instead of three Caucasian (race), therapy managers.
ECF No. 1-2.

Although Plaintiff correctly argues that mere

failure to check a box is not fatal to exhaustion, ECF No. 16 at
5, the Court finds that failure to put forth a specific
allegation describing color discrimination or showing how color
discrimination was related to Plaintiff’s allegation that she
was discriminated against is fatal to her case.

See Teasdell v.

Baltimore Cty. Bd. of Educ., Civil No. WDQ-13-0107, 2013 WL
4804736, at *4 (D. Md. Sept. 6, 2013) (dismissing retaliation
claim for lack of subject matter jurisdiction when the plaintiff
did not mark the box for retaliation and her charge narrative
did not mention retaliation).
Relying on Bryant, Defendant correctly argues that
Plaintiff is precluded from bringing a color discrimination
claim.

In Bryant, the plaintiff filed an EEOC charge alleging

discrimination based on race.

288 F.3d at 132.
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Subsequently,

the plaintiff’s complaint alleged that the defendant
“discriminated against him based on color, race, and/or sex, and
retaliated against him for filing complaints of discrimination
with the EEOC.”

Id. at 132-133.

The court found the

“administrative investigation of retaliation, and color and sex
discrimination, [] could not reasonably be expected to occur in
light of the [plaintiff’s] sole charge of race discrimination.”
Id. at 133.
Analogous to Bryant, the scope of Plaintiff’s Complaint
exceeds the limits set by the allegations of Plaintiff’s EEOC
charge.

Plaintiff did not provide information to the EEOC which

could reasonably be expected to lead to an administrative
investigation of color discrimination.

Rather, the allegations

in Plaintiff’s EEOC charge focus solely on discrimination based
on race, referring to Plaintiff’s race interchangeably as
“Black” and “African American” and referencing her coworkers who
received the allegedly favored treatment as “Caucasian.”
C. Wrongful Discharge
Maryland recognizes “a cause of action for [wrongful]
discharge by an employer of an at will employee when the
motivation for the discharge contravenes some clear mandate of
public policy.”
(Md. 1981).

Adler v. Am. Standard Corp., 432 A.2d 464, 473

The “public policy in question must be a

preexisting, unambiguous, and particularized pronouncement, by
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constitution, enactment, or prior judicial decision, directing,
prohibiting, or protecting the conduct in question so as to make
the public policy on the relevant topic not a matter of
conjecture or interpretation.”

Porterfield v. Mascari II, Inc.,

788 A.2d 242, 245 (Md. Ct. Spec. App. 2002).

The Maryland tort

of wrongful discharge is unavailable when the statute relied
upon as the source of public policy has its own remedial scheme
for vindication of that policy.

Id. at 245-246.

Defendant’s primary argument for the dismissal of
Plaintiff’s wrongful discharge claim is that the FCA represents
the public policy interest and provides a statutory remedial
scheme to vindicate that interest.

ECF No. 13.

Defendant

points out that Maryland courts have routinely held that a
plaintiff may not proceed with a wrongful discharge claim when
the FCA provides the public policy interest.

See Glynn v. EDO

Corp., 536 F. Supp. 2d 595, 616 (D. Md. 2008) (“Glynn has a
civil remedy in the form of the FCA retaliation provisions, and
Maryland law precludes the use of the wrongful discharge tort to
recover in the name of the same public policy interest.”).
Plaintiff counters by arguing that “[a]lthough the clear
public policy of the FCA is to prevent fraudulent Medicare
payments,” [] “there is no remedy for termination due to refusal
to participate in Medicare fraud.”
added).

ECF No. 16 at 11 (emphasis

Plaintiff’s argument fails because the FCA retaliation
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provision protects employees from being “discharged, demoted,
suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of employment
because of the lawful acts done by the employee in furtherance
of a [civil action for false claims] or other efforts to stop
[one] or more violations [under the FCA].”
(emphasis added).

31 U.S.C. § 3730(h)

Whether the conduct causing Plaintiff’s

termination was her refusal to participate in defrauding the
government, i.e. an “effort to stop,” or reporting of efforts to
defraud the government, the conduct is remedied under the FCA
retaliation provision.
Plaintiff points out that there may be multiple sources of
public policy and that when “‘at least one public policy mandate
violated by a discharge does not arise from a law that provides
its own remedy for the violation, an action for abusive
discharge based on that violation may lie.’”

ECF No. 16 at 11

(citing Insignia Residential Corp. v. Ashton, 755 A.2d 1080,
1081 (Md. 2000)).

Plaintiff claims the additional public policy

sources her wrongful discharge suit seeks to vindicate include
“multiple laws implicated by Medicare fraud including 18 U.S.C.
§ 1001 (making false statements to the government), 18 U.S.C. §
287 (making false claims to the government), 18 U.S.C. § 1341
(fraud by mail), 18 U.S.C. § 1343 (fraud by wire, radio, or

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television), and 18 U.S.C. § 1347 4 (intentional health care
benefit fraud).”

ECF No. 16 at 8.

Nevertheless, the sole public policy Plaintiff seeks to
vindicate is protected by the FCA.

The five statutes cited by

Plaintiff merely provide the federal government with other tools
to protect against attempts to defraud the United States.

As

stated in Glynn “‘the purpose of the tort of abusive discharge
is to vindicate a public policy in the absence of any civil
remedy.’”

536 F. Supp. 2d at 616 (quoting Carson v. Giant Food,

Inc., 187 F. Supp. 2d 462, 482-483 (D. Md. 2002)).

Because

Plaintiff has a civil remedy under the FCA, and fails to
adequately point to a separate public policy interest implicated
by her termination, the Court declines to embark on a “judicial
foray into the wilderness of discerning ‘public policy’ without
clear direction from a legislative or regulatory source.”
Milton, 138 F.3d at 523.

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In Magee v. DanSources Tech. Serv., Inc., the court found the
plaintiff’s claim for wrongful discharge could be based on the
public policy emanating from 18 U.S.C. § 1347. 769 A.2d 231,
257 (Md. Ct. Spec. App. 2001). The health care benefit fraud in
that case involved the submission of a false claim to a private
insurance carrier. Id. at 236. In this case, because Defendant
allegedly defrauded a United States government health care
program, Medicare, the public policy implicated is the same as
that embodied by the FCA.
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III. MOTION FOR LEAVE TO FILE SURREPLY
Unless otherwise ordered by the court, surreply memoranda
are not permitted to be filed.

Local Rule 105.2(a).

Surreplies

may be permitted when the moving party would be unable to
contest matters presented to the court for the first time in the
opposing party’s reply.
605 (D. Md. 2003).

Khoury v. Meserve, 268 F. Supp. 2d 600,

Plaintiff argues that she is justified in

filing a surreply because Defendant asked the Court to consider
sanctions against Plaintiff’s counsel for the first time in its
Reply instead of its Partial Motion to Dismiss.

The Court

grants Plaintiff’s Motion for Leave to File Surreply because
Plaintiff has not had an opportunity to contest the matter of
sanctions.
Sanctions are not warranted in this case.

First, Defendant

failed to comply with the procedural requirement of Federal Rule
of Civil Procedure 11(c)(2), requiring a motion for sanctions to
be made separately from any other motion.

Additionally,

Plaintiff is entitled to maintain a novel legal position and has
not pursued these issues in bad faith.

Although a legal claim

may be so inartfully pled that it cannot survive a motion to
dismiss, such a flaw will not in itself support Rule 11
sanctions.

Simpson v. Welch, 900 F.2d 33, 36 (4th Cir. 1990).

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IV. CONCLUSION
For the above-stated reasons, the Court will grant
Plaintiff’s Motion for Leave to File Surreply and Defendants’
Partial Motion to Dismiss the Amended Complaint.

A separate

order will issue.

____________/s/___________________
William M. Nickerson
Senior United States District Judge

DATED: September 29, 2015

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