Vincent v. MedStar Southern Maryland Hospital Center
MEMORANDUM OPINION Signed by Judge Theodore D. Chuang on 8/22/2017. (cags, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Civil Action No. TDC-16-1438
MEDSTAR SOUTHERN MARYLAND
Jaicia Vincent, a former employee of MedStar Southern Maryland Hospital Center
("MedStar"), filed this action alleging that MedStar discriminated and retaliated against her in
violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.
17 (2012); 42 U.S.C.
Code Ann., State Gov't
1981; and the Maryland Fair Employment Practices Act ("FEPA"), Md.
(West 2015). Pending before the Court is MedStar's Motion
for Summary Judgment. For the reasons set forth below, the Motion is granted.
The following facts are presented in the light most favorable to Vincent, the non-moving
The MedStar-SMHC Integration
Southern Maryland Hospital Center ("SMHC") is located in Clinton, Maryland and was
an independent entity until December 2012, when it was acquired by MedStar. James McKeon
of MedStar led the initiative to integrate SMHC's billing department into MedStar.
began to implement a patient accounts and billing software system known as Invision-which
led to an automation of 60 percent of the billing process-as
part of a project known as the
Corporate Revenue Cycle Consolidation Initiative. For the first two years following the merger,
the integration process did not affect the Lab Contract Services Department, which performed
billing and other tasks relating to the services provided by SMHC to nursing homes, assisted
living facilities, and rehabilitation facilities. The invoice billing for the 13 nursing homes and six
assisted-living facilities was still processed manually.
In 2015, however, MedStar terminated
contracts with three nursing homes, and the SMHC patient accounting system, based in Waldorf,
Maryland, was transitioned to MedStar's Patient Financial Services Department in White Marsh,
Maryland as part of the Corporate Revenue Cycle Consolidation
At least 22
employees who performed in-patient hospital billing lost their jobs during the consolidation
process after being given about 90 days' notice.
Of the 22 individuals whose billing and
collections positions were eliminated in May and July 2015, 10 were African American, nine
were white, two were Asian American, and one was Latino.
Vincent, an African American woman, was hired by SMHC in 2011 and was assigned to
a satellite office in Waldorf, Maryland in October 2011. She reported to Michael Deabay until
November 2013, when Deabay retired and Darlene Moody took his place.
In her capacity as
nursing home coordinator in the Lab Contract Services Department, Vincent performed seven
different types of billing, including commercial billing and Medicare billing.
In August 2013,
Cheryl Begg, who had been at the hospital for over 30 years and was the Acting Director of the
Patient Accounts Department,
transferred to the Lab Contract Services Department
Waldorf office because of a workplace dispute with her supervisors.
Despite the reservations of
Deabay, who believed that Begg had a tendency to change departments frequently, Vincent had
advocated for bringing Begg into the department because of her Medicare billing expertise.
the time, Vincent was unaware that Begg was not proficient in Microsoft Word or Excel, or in
As a result, Begg's assistance was limited to Medicare billing, which did not
require much time.
Because Begg did not know how to do invoice billing, Vincent had her
provide quality assurance by spot-checking work done by others.
In March 2014, on Deabay's recommendation, Vincent was promoted to supervisor and
had two subordinates,
Begg and Keisha Whetstone, a contractor.
Vincent also effectively
became the office manager, with additional duties such as ordering supplies and overseeing time
and attendance, though her job title remained nursing home coordinator.
In 2015, Vincent became the only employee conducting nursing home billing. Whetstone
had resigned from her position in January and was not replaced.
That same month, McKeon
asked Begg to join him to work on a special project because of her "extensive revenue cycle
experience, her Medicare knowledge," and his positive experience working with Begg during the
initial integration process. Joint Record ("J.R.") 33, 107. Later, in May 2015, in the lead up to
the cessation of billing operations in the Waldorf office, Vincent was relocated to SMHC in
Clinton where she would be supervising the front desk as the new system was being rolled out.
Although she was told that she would have an office, she was placed in a cubicle in the
Relationship with Moody
Vincent began having problems with Moody in November 2014.
Until May 2015,
Moody worked at SMHC in Clinton while Vincent worked at the Waldorf office. They largely
interacted over telephone.
Moody began to not answer her calls or emails and generally made
herself unavailable to Vincent.
On other occasions, she would yell at Vincent over the phone.
For instance, on November 24, 2014, Moody yelled at Vincent over the phone about her failure
to have her office personnel sign up for a mandatory training, even though Vincent had not
an email about the event.
condescending and demeaning manner and saying, "Well, if I knew you were going to be that
stupid ... I would have done it myself." J.R. 59-60. In a separate incident, when Moody called
Vincent to accuse Whetstone of not verifying that patients were in their system, Moody yelled at
Vincent, "You're not doing your job," and continued to scream at her over the phone about
Vincent and Whetstone "being stupid and not following through and doing X, Y, and Z." J.R.
According to Whetstone, Moody's harassment of Vincent occurred almost daily, was
and was at times threatening and physically humiliating.
result of this "constant threatening conduct" directed at both Vincent and herself, Whetstone
sought other employment and resigned in January 2015. J.R. 132-133.
At various times, Moody directly told Vincent, "I would just rather not work with you."
On one occasion, in July 2014, Whetstone overheard Moody tell Begg that "Jaicia
won't be here long."
J.A. 133. Then in December 2014, Vincent overheard a conversation
between Moody and Begg in which Moody said that she was good friends with Grant McClure,
whom Vincent believed to be in the Human Resources Department, and that "if I want somebody
fired I can get them fired," before then looking in Vincent's direction.
February 2015, Moody accused Vincent of violating patients'
patient health information with other MedStar staff.
privacy rights by discussing
Soon thereafter, however, the head of
compliance assured them that such discussions did not violate any patient rights.
Moody also began to close Vincent off from actively participating
engaging in certain work. On at least three occasions, Moody invited Begg to attend meetings
either in place of Vincent, who was the supervisor, or with Vincent but with Begg assuming the
lead role. On July 29, 2014, Moody invited Begg to attend a managers meeting relating to the
MedStar integration and directed Vincent not to say anything and to allow Begg to speak instead,
even though questions about the billing systems were being directed to her and Begg could not
answer them. According to Vincent, after the meeting, Begg told her that Moody wanted Begg
at the meeting and did not want Vincent to speak, that Moody wanted Begg to be the new
nursing horne manager, and that Moody told McKeon not to interact with Vincent.
asserts that Begg had confided in her that Moody had told Begg that she does not like black
people and warned Vincent that "you won't be here long" because Moody was training Begg to
take over Vincent's job. J.R. 43,54.
Begg, however, has denied both hearing Moody make such
a statement and telling Vincent of such a statement.
On another occasion, on January 16,2015, Moody and Begg went to a MedStar corporate
meeting with McKeon relating to the transition to Invision.
Moody did not invite Vincent to
According to McKeon, he asked that Begg attend because he understood Begg to be
"primarily responsible for billing nursing home lab services to private insurers and Medicare Part
B," which was the subject of the meeting, and because of her overall experience with Medicare
billing and SMHC's revenue cycle processes.
J.R. 103. The meeting did not relate to Medicare
Part A billing to nursing homes, which was the primary area of Vincent's experience.
and Begg attended
According to Vincent, she found out about the meeting later from Begg, who told
her that Moody instructed her not to say anything about it to Vincent. Begg denies attending that
meeting or making such a statement.
In December 2014 and January 2015, Vincent confided in two co-workers, Maureen
Nelson, supervisor of compliance, and Tammy Hunt, supervisor of the microbe blood unit, about
the issues she was having with Moody. She spoke with them as colleagues and friends and did
not expect them to take any action based on her complaints to them. According to Vincent, she
was not the only employee subject to mistreatment by Moody.
Hunt, who is white, frequently
called Vincent, in tears, to complain about Moody, telling Vincent that Moody was "[n]ot
"talking to her in a demeaning,
"demeaning her in front of other employees," among other incidents.
J.R. 20-21. Vincent also
heard of other employees, of different races, who had grievances about or were yelled at by
Vincent attempted to contact Human Resources about her relationship with Moody. On
three occasions between February 2015 and July 2015, Vincent spoke with a secretary in Human
Vincent asked to schedule an appointment and, when asked for a summary of the
"employee issue," she said "Well, it's Darlene Moody, and I feel that I'm being mistreated and I
just need to talk to [the Human Resources director] and file a grievance."
J.R. 27. Vincent
provided an overview of the problems she felt she was having, including being left out of
meetings and off of emails.butdidnotprovidespecificdetails.ld.
The secretary responded by
saying "We know about Ms. Moody" and that they were busy with the merger but would try to
get back to Vincent soon. Id. Vincent received no follow-up call.
When Deabay left SMHC, he had told Vincent that when he left MedStar, "You may run
into some problems because Darlene has issues with people of a certain class." J.R.21-22.
April 2015, Vincent spoke with Deabay about her issues, and he independently filed a complaint
with MedStar in April 2015 about "Darlene's mistreatment" of Vincent. J.R. 19,21-22.
recommended in a June 30, 2015 email that because automation had "substantially improved the
nursing home lab billing and reference lab billing processes," Vincent's position should be
eliminated and only one member of the nursing home billing group should be retained. J.R. 115116. McKeon had concluded that Begg, with whom he had worked closely from December 2012
until August 2013 in the Patients Account Department, was best suited for the role. In particular,
he believed that she was the best choice because: (1) Vincent's area of expertise accounted for
only a small portion of the work to be performed by the remaining employee, whereas Begg had
a much broader skillset; (2) he had worked with Begg directly and found her to be "selfmotivated and an independent worker"; (3) Begg had worked for SMHC for approximately 30
years in comparison to Vincent's four years; and (4) Begg had already been processing "legacy
of certain remaining
with which the remaining
employee would have to assist. J.R. 107-109. The decision to eliminate Vincent's position and
retain Begg was deemed final once McKeon received approval from his supervisors, Susan
Whitecotton and Dan Feeley, sometime before July 14, 2015.
Although McKeon's June 30,
2015 email states that "we will need to run this by Darlene Moody before a final decision can be
made," McKeon has stated that this reference was to consultation
with Moody about his
recommendation, also contained in the email, to transition a phlebotomist to a hospital laboratory
role about which Moody had relevant clinical expertise, not the decision to eliminate Vincent's
position and retain Begg. J.R. 109-110, 116. On July 14,2015, McKeon informed Moody and
Grant McClure, Vice President of Professional Services and Plant Operations, of the decision.
Before this decision was communicated to Vincent, Moody began to implement changes to
reflect the termination.
For example, on July 27, 2015, Moody emailed Vincent to inform her
that she would no longer be able to access the Invision billing system, and that Begg would be
handling the Invision billing and generation of daily reports going forward.
to Human Resources that she "would like to do a Reduction in Force in her
department" for Vincent's position. J.R. 126.
In August 2015, after receiving the email from Moody informing her that she was no
longer involved with daily reports, Vincent went to Moody to tell her that she was "being
discriminative" and asked if there was any issue she had with her work, to which Moody replied,
"I just prefer to work with Cheryl."
Unsatisfied, Vincent went to McClure on
August 14, 2015 to request a meeting to discuss her issues with Moody. Knowing that Vincent
was scheduled for termination, McClure consulted with Paul Zeller, Vice President of Human
Resources, who advised that the termination could still proceed.
On August 18, 2015, Vincent
met with Zeller and told him that "I felt I was being discriminated because of my race by Darlene
Moody" and explained that Moody "would not take my phone calls, that she was being
demeaning, condescending when she'd talked to me, [and] that she would not respond to my
J.R. 24. Vincent also reported that there were several meetings in which she was not
included, and that Begg had told her that Moody said "that she did not feel comfortable working
with [Vincent] because of [her] race." J.R. 24. Zeller responded by saying that "Mike Deabay
made a complaint.
We know about the Darlene incident."
J.R. 23. Zeller then added that he
would schedule a meeting between Vincent and Moody and, if they could not come to a
resolution, "we will have to file it [with the] EEOC." Id.
That meeting took place on August 21, 2015 and was attended by Zeller, McClure,
Vincent and Moody. During the meeting, after Vincent asked why she was being excluded from
meetings and asked what could be done to rectify the situation, Moody stated, "I just prefer not
to work with you." l.R. 25. Vincent then said she was going to "escalate it" and began reading
aloud her written notes about her grievances. Id. Moody then interrupted to apologize and said
that she "had a lot going on" and that she would "try to do a better job to be a better leader." l.R.
25. Vincent left the meeting feeling "really happy" and believed that the situation with Moody
was being addressed, if not resolved.
But on August 24, 2015, Vincent received an email
requesting that she meet with Zeller and Moody.
At the meeting, Zeller thanked her for her
service and said that her position was terminated effective September 4, 2015, and that the
decision was unrelated to her grievance and was not retaliatory.
She was told that she could
apply for other MedStar positions but did not do so. Vincent is currently employed part-time at
the Diabetes and Endocrinology Center in Waldorf, Maryland as a contractor.
termination, Begg handled legacy accounts and performed other work as directed by McKeon
and the Patient Financial Services Department, including processing credit balance refunds and
determining whether a patient has a billable claim. According to Vincent, Begg also took over
Vincent's billing duties after she was terminated.
MedStar seeks summary judgment in its favor, arguing that Vincent cannot establish a
prima facie case of race discrimination or retaliation and that, even if she were able to do so,
MedStar has articulated a legitimate non-discriminatory reason for her termination that Vincent
has not demonstrated was pretextual.
MedStar also contends that Vincent has no viable hostile
work environment claim because the alleged harassment by Moody was not severe or pervasive,
was not based on race, and cannot be imputed to MedStar.
Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the
moving party demonstrates there is no genuine issue as to any material fact, and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light most
favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts supported in
the record, not simply assertions in the pleadings.
346 F.3d 514, 522 (4th Cir. 2003).
Bouchat v. BaIt. Ravens Football Club, Inc.,
The nonmoving party has the burden to show a genuine
dispute on a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
A fact is "material" if it "might affect the outcome of the suit under the
governing law." Anderson, 477 U.S. at 248. A dispute of material fact is only "genuine" if
sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for
that party. Id at 248-49.
MedStar seeks summary judgment
claim of race discrimination
termination, which it characterizes as a reduction in force. To avoid summary judgment on a
Title VII disparate treatment claim, a plaintiff must establish intentional discrimination through
one of two methods.
The plaintiff may either demonstrate through direct evidence that race
"motivated the employer's
adverse employment decision," Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277,284 (4th Cir. 2004), abrogated on other grounds by Univ. of Tex. Sw.
Med Ctr. v. Nasser, 133 S. Ct. 2517 (2013), or proceed through the approach espoused in
v. Green, 411 U.S. 792 (1973), "under which the employee,
establishing a prima facie case of discrimination, demonstrates that the employer's proffered
discrimination," Hill, 354 F.3d at 285.
Vincent's race discrimination claim centers on her termination.
Her complaints of not
being invited to meetings, having her access to certain billing systems or reports blocked, and
to a cubicle rather than an office do not constitute
employment actions that entail a "significant change in employment status, such as hiring, firing,
failing to promote, reassignment
causing a significant change in benefits."
or a decision
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
Here, Vincent provides no direct evidence that her termination
or other adverse
employment action was based on race. See Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th
Cir. 2006) ("Direct evidence must be 'evidence of conduct or statements that both reflect directly
the alleged discriminatory
attitude and that bear directly on the contested
(emphasis added) (quoting Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th
Cir. 1999)). To the extent that she asserts that statements made to her by Deabay or Begg-for
example, Deabay telling her that Moody "has issues with people of a certain class" or Begg
saying that Moody "doesn't like black people," J.R. 21, 54-reflect
animus, they do not constitute direct evidence of discrimination because they do not reflect the
requisite nexus to the termination decision.
See id. Vincent therefore must establish her case
circumstantially using the McDonnell Douglas framework.
Prima Facie Case
Ordinarily, a plaintiff challenging termination must show that the plaintiff (1) was in the
protected class; (2) was discharged; (3) at the time of the discharge, was performing the job at a
level that met the employer's
legitimate expectations; and (4) following the discharge, was
replaced by an individual of comparable qualifications outside the protected class. Mitchell v.
Data Gen. Corp., 12 F.3d 1310, 1315 (4th Cir. 1993). In the context of a reduction-in-force,
however, the employees "are usually meeting the employer's performance expectations, and
because there are reductions-in-force,
the employees generally are not replaced."
appropriate prima facie framework thus requires a showing that (l) the employee was in a
protected class; (2) the employee was selected for discharge from a larger group of candidates;
(3) the employee was "performing at a level substantially equivalent to the lowest level of those
of the group retained"; and (4) the "process of selection produced a residual work force of
persons in the group containing some unprotected persons who were performing at a level lower
than that at which [the employee] was performing."
The fourth element may also be
satisfied by "introducing other probative evidence that indicates the employer did not treat ...
race neutrally when making its decision." Causey v. Balog, 162 F.3d 795,802 (4th Cir. 1998).
MedStar discusses the reduction-in-force framework in its Motion, while Vincent applies
the traditional prima facie case. Because Vincent's position was eliminated, it was one of 23
relating to billing that were eliminated following the consolidation, and her job performance was
not raised as an issue, the reduction-in-force
framework is the appropriate test to apply.
Grochowski v. Sci. Applications Int'l Corp., No. ELH-13-3771, 2015 WL 5334051, at *17 (D.
Md. Sept. 11,2015) (using the reduction-in-force prima facie framework in light of the "critical
fact that [the plaintiff] was among nearly fifty employees terminated" in one year). The Court
notes, however, that the appropriate
scope of the inquiry is not whether there was race
discrimination in the broad set of layoffs, but whether in reducing Vincent's group from three
employees to one, there was race discrimination in the termination of Vincent, rather than Begg.
Here, the first three elements are not in dispute. As for the fourth element, Vincent has
offered evidence that her work performance was superior to that of Begg.
providing her performance
In addition to
in which her work was deemed to have exceeded
expectations, the second highest rating, Vincent asserted, based on her own observations as
Begg's supervisor, that Begg was skilled in handling Medicare billing but was not able to do
other tasks proficiently and had to be assigned to spot-check the work of others. She recounted a
July 29, 2015 meeting in which she, not Begg, was more familiar with the company's billing
practices. According to Whetstone, who worked alongside Begg, Begg's work performance was
"poor," her skill level was "low," and she was limited to working with one type of software and
was not willing to learn new billing forms.
Particularly where Vincent was
Begg's supervisor before the consolidation, yet was passed over in favor of Begg, Vincent has
put forth sufficient evidence to establish a prima facie case that the "residual workforce," namely
Begg, was performing at a lower level than Vincent. Likewise, if applying the traditional prima
facie framework, where the fourth element is whether Vincent was replaced by a person from
outside the protected class who was comparably qualified, Vincent has put forth sufficient
evidence to show that she was replaced by a white employee of comparable qualifications.
Accordingly, the Court concludes that Vincent has, for purposes of the motion for summary
judgment, established a prima facie case of race discrimination in her termination.
Even though Vincent has established a prima facie case, MedStar offers what it considers
to be a legitimate,
reason for the elimination
of her position and her
the integration of SMHC into MedStar and the transition of SMHC's billing
systems to the more automated Invision billing system. As described in his June 30, 2015 email,
McKeon, who was leading the integration of billing systems, concluded that the transition
presented an opportunity to reduce the staff conducting the nursing home and reference lab
billing process such that only one full-time employee was required.
This remaining position included more duties than were performed by Vincent in her role
as nursing home coordinator.
The position would involve the absorption of at least some of
Vincent's job responsibilities, namely nursing home billing, but the new position's duties also
included oversight of lab registrations, account upgrades, processing various legacy accounts,
accounts receivable follow-up, and miscellaneous revenue cycle tasks. As for who would fill the
one remaining position, McKeon selected Begg.
Notably, McKeon had personal experience
working with Begg from December 2012 to August 2013, when she was in the Patient Accounts
From that time period, Begg impressed him with her revenue cycle knowledge and
experience and had extensive Medicare billing and follow-up skills.
Then, in April 2015,
McKeon reached out to enlist Begg to assist in processing legacy accounts because of their prior
working relationship and because of her revenue cycle experience. By the time of the decision to
retain Begg rather than Vincent, McKeon had concluded that Begg was better qualified because
based on his prior working relationship with her, he deemed her to be "an experienced revenue
cycle manager," "self-motivated and an independent worker," "an experienced Medicare billing
and collections representative,"
functions as needed."
and her "skill set would also support other revenue cycle
l.R. 115-116. In particular, McKeon believed that Begg had a broader
skill set than Vincent's nursing home billing experience, specifically her experience as a revenue
cycle manager, which aligned with the accounts receivable work; her experience with Medicare
accounts receivable follow-up; and her processing of legacy accounts with McKeon since April
McKeon also believed that Begg had the experience and skill set to carry out other
additional duties of the new position, including assisting with walk-in billing inquires, acting as a
witness in collection lawsuits, and supporting Medicare billing projects.
believed that Begg was better qualified because she had 30 years of experience as compared to
Vincent's four years and had been the Acting Director of the Patient Accounts Department.
McKeon recommended this reduction-in-force to a single position and the selection of Begg to
fill the remaining position in an email of June 30, 2015 to his supervisors, Daniel Feeley and
They approved the recommendations prior to July 14,2015.
There is no evidence to suggest that this proposed reduction-in-force to one position was
suggested for discriminatory reasons.
As for the choice of Begg to fill the remaining position,
Vincent has never suggested that McKeon, Feeley, or Whitecotton harbored any discriminatory
McKeon's account is corroborated by his contemporaneous email of June 30, 2015.
The Court therefore concludes that MedStar has proffered a legitimate, non-discriminatory
reason for Vincent's termination.
presumption "created by the prima facie case is rebutted and simply 'drops out of the picture,'''
and Vincent is left with the ultimate burden of "proving that the employer intentionally
discriminated against the employee by reason of (race]." Mitchell, 12 F.3d at 1317 (quoting Sf.
Mary's Honor etr. v. Hicks, 509 U.S. 502, 511 (1993)).
On this record, Vincent has not
marshaled sufficient evidence for a reasonable jury to conclude that MedStar's
mere cover for an adverse employment action taken because of Vincent's race.
Vincent does not assert that any MedStar employee other than Moody had discriminatory
The evidence, however, establishes that the termination decision was made by Feeley
and Whitecotton, based on McKeon's recommendation.
In a discriminatory
harbored by the decisionmaker.
case, the discriminatory
See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289,
300 (4th Cir. 2010) ("It is the decision maker's intent that remains crucial ....
"); see also Hill,
354 F.3d at 286. In limited circumstances, however, discriminatory intent can be imputed to the
formal decisionmaker "when that official has no discriminatory animus but is influenced by
previous company action that is the product of a like animus in someone else." Staub v. Proctor
Hosp., 562 U.S. 411, 417 (2011) (applying this principle to an alleged violation of the Uniformed
Services Employment and Reemployment Rights Act, which "is very similar to Title VII"); see
also e.g., Smyth-Riding v. Scis. & Eng'g Servs., LLC, --- F. App'x ---, No. 16-1295, 2017 WL
3531416, at *7-9 (Aug. 17, 2017) (applying Staub to a claim of sex discrimination
retaliation); Morris v. McCarthy, 825 F.3d 658, 668-69 (D.C. Cir. 2016) (applying Staub to a
Title VII race discrimination claim); Smith v. Chi. Transit Auth., 806 F.3d 900, 906 (7th Cir.
2015) (same); Lobato v. New Mexico Env't Dep't, 733 F.3d 1283, 1294-96 (lOth Cir. 2013)
(applying Staub to a Title VII national origin claim); Chattman v. Toho Tenax Am., Inc., 686
F.3d 339, 350-51 & n.10 (6th Cir. 2012) (applying Staub to a Title VII race discrimination
Under the eat's paw theory of liability, evidence that a supervisor who was not the
an act motivated by [discriminatory]
animus that [was]
intended by the supervisor to cause an adverse employment action" could support a finding of
discrimination "if that act [was] a proximate cause of the ultimate employment action." Staub,
562 U.S. at 422 & n.3 (footnote omitted).
Here, there is no evidence that Moody participated in the termination decision, or that
or McKeon sought and relied upon her recommendation.
McKeon's June 30, 2015 email stated, "I know we will need to run this by Darlene Moody
before a final decision can be made," J.R. 116, McKeon explained that that reference related to
to transfer the phlebotomist to the hospital laboratory department.
assuming that the reference to consulting with Moody also related to the decision to eliminate
Vincent's position, it implicitly establishes that McKeon's original recommendation, which was
ultimately accepted, was formulated without input from Moody. Moreover, there is no evidence
that Moody was actually consulted before Feeley and Whitecotton approved the reduction-inforce and termination and McKeon informed Moody of the decision on July 14,2015.
At most, there is evidence to support the inference that Moody had, at various times,
expressed a desire to have Vincent terminated.
For example, in July 2014, Whetstone overheard
Moody say that "Jaicia won't be here long," J.R. 133; in December 2014, Moody said that "if!
want somebody fired I can get them fired," and looked at Vincent, J.R. 45; and in February 2015,
Moody wrongfully accused Vincent of violating patient privacy rights.
Moody also brought
Begg, not Vincent, to meetings with MedStar relating to the integration.
efforts to prevent Vincent from attending MedStar management meetings, or speaking at those
that she did attend, arguably could have been designed to undermine Vincent in favor of Begg,
who was invited to attend instead of Vincent. But these efforts could not reasonably be deemed
to be the proximate cause of the decision to terminate Vincent in favor of Begg, as required
under Staub, particularly when there is no evidence that McKeon rejected Vincent or selected
Begg based on their attendance at meetings, and it is undisputed that McKeon had a longstanding
working relationship with Begg that dated back to December 2012, well before Moody became
Vincent's supervisor in November 2014.
Finally, even if there were evidence that Moody had caused Vincent's termination, there
is insufficient evidence to establish that Moody's evident dislike of Vincent was motivated by
race. Although she repeatedly yelled at Vincent, there is no evidence that she ever used racially
derogatory language in those tirades. Significantly, Moody was known to do the same to white
employees as well, including Tammy Hunt, who frequently came to Vincent in tears after Moody
had verbally berated her. Although Vincent has reported that Begg told her that Moody had said
that she does not like black people, Begg has denied making such a statement.
was not part of management
such that her statements could be attributed to the company,
Vincent's accounts of Begg's statements are inadmissible hearsay and may not be considered.
See Mansell v. Toys R Us, Inc., 673 F. Supp. 2d 407, 418.:.19 (D. Md. 2009) (declining to
consider on a motion for summary judgment statements by a co-worker about the discriminatory
animus of managers when they were presented in the form of inadmissible hearsay).
broad statement that "We were aware that Ms. Darlene Moody was racist," l.R.
131, also does not constitute factual evidence of discriminatory intent. See Bryant v. Bell Atl.
Md., Inc., 288 F.3d 124, 134-35 (4th Cir. 2002) (finding that affidavits of two co-workers and a
union representative stating that the plaintiff was "discriminated against because of his race,"
including a statement that "I believe [the manager] is a racist," constituted subjective beliefs
insufficient to create a genuine issue of material fact on the issue of discrimination).
undermined her, and did not want to work with her, she has not provided sufficient evidence to
establish that Moody's actions were motivated by racial animus. More importantly, as discussed
above, there is insufficient evidence to create a genuine issue of material fact on whether the
actual termination decision, which was made by others, was motivated by race discrimination.
Accordingly, the Court finds that MedStar is entitled to summary judgment on Vincent's claim
of racially discriminatory termination under Title VII. Furthermore, because Title VII case law
applies to both section 1981 and FEPA claims, the Court grants MedStar's motion with respect
to Vincent's discrimination claims under those statutes as well.
See Clarke v. DynCorp Int'l
LLC, 962 F. Supp. 2d 781, 788-89 (D. Md. 2013) (citing James v. Booz-Allen & Hamilton, Inc.,
368 F.3d 371, 375 n.1 (4th Cir. 2004), and Haas v. Lockheed Martin Corp., 914 A.2d 735, 742
(Md. 2007)); Nana-Akua Takyiwaa Shalom v. Payless Shoesource Worldwide, Inc., 921 F. Supp.
2d 470,483 n.20 (D. Md. 2013) ("Section 1981 and FEPA claims of discrimination are analyzed
under the same framework as Title VII.").
Hostile Work Environment
Vincent also claims that even if Moody did not cause her termination
discriminatory reasons, Moody subjected her to a hostile work environment in violation of Title
VII, which prohibits employers from discriminating against individuals with respect to "terms,
conditions, or privileges of employment, because of such individual's race ...
"Since an employee's
work environment is a term or condition of
employment, Title VII creates a hostile working environment cause of action." EEOC v. R & R
Ventures, 244 F.3d 334, 338 (4th Cir. 2001).
A hostile work environment exists "when the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim's employment and create an abusive
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015).
To prove such a claim, a plaintiff must show that the offending behavior was (1) unwelcome, (2)
based on gender or race, (3) "sufficiently
severe or pervasive" to alter the conditions of
employment and create "an abusive atmosphere," and (4) imputable to the employer.
Homes, LLC, 775 F.3d 202, 207-08 (4th Cir. 2014) (quoting EEOC v. Cent.
Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009)). A court's determination whether such an
environment exists includes a consideration of "the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance."
F.3d at 277 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,23 (1993)). "[C]allous behavior
by [one's] superiors," Bass v. E.! DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003),
or "a routine difference of opinion and personality conflict with [one's] supervisor," Hawkins v.
PepsiCo, Inc., 203 F.3d 274,276 (4th Cir. 2000), in contrast, do not rise to the level of actionable
In support of her hostile work environment claim, Vincent has asserted that Moody
refused to take calls or respond to emails from Vincent, failed to invite her to certain meetings,
and once accused her of violating patients' privacy rights. In addition, in 2015, around the time
that MedStar had decided to close the Waldorf office and select Begg as the sole remaining
billing official originally from that office, Moody revoked Vincent's access to the new billing
system and moved her to a small cubicle in the admissions department.
Finally, Vincent and
Whetstone asserted that Moody repeated yelled at her over the phone and recounted several
specific instances of such behavior.
This pattern of conduct was not sufficiently severe and pervasive to establish a hostile
Most of the conduct described-refusing
to communicate with Vincent, not
inviting her to meetings, restricting her access to computer systems, and moving her to a cubicle
at the time of the transition-suggests
that Moody disfavored Vincent as an employee, but lack
the necessary component of "discriminatory intimidation, ridicule, and insult."
786 F.3d at 277 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17,21 (1993)).
The only conduct that by its nature appears potentially supportive of a hostile work
environment claim consists of the incidents when Moody yelled at Vincent over the telephone.
On one occasion, Moody yelled at Vincent for not having her team sign up for training, used a
condescending, demeaning tone, and said "Well, if I knew you were going to be that stupid ... I
would have done it myself."
J.R. 59. On another, she yelled at Vincent and Whetstone for not
checking whether certain patients were in the billing system.
Vincent noted that although
Moody yelled at other employees, too, Vincent "got it all the time," and Begg was never berated.
J.R. 60. Whetstone characterized Moody's harassment of Vincent as "unrelenting,"
almost daily, and stated that it was threatening and physically humiliating.
J.R. 131-133. As a
result of this "constant threatening conduct" directed at both Vincent and herself, Whetstone
resigned in January 2015. J.R. 132-133.
These incidents, while inappropriate, fall short of establishing a hostile work environment
claim. None involved any racial epithets or racially derogatory language that was so severe as to
establish a hostile work environment.
See, e.g., Boyer-Liberto, 786 F.3d at 280 ("[A] reasonable
jury could find that [the supervisor's] two uses of the "porch monkey" epithet ...
enough to engender a hostile work environment.").
There is no evidence that any of these
telephone calls involved any "physically threatening" conduct; indeed, Moody and Vincent did
not even work out of the same location.
The circumstances in this case resemble those in
Rodriguez v. Kantor, 162 F.3d 1155 (4th Cir. 1998) (unpublished table decision). in which the
United States Court of Appeals for the Fourth Circuit affirmed the district court's conclusion that
giving of unrealistic assignments,
isolating of the plaintiff from colleagues,
"constant criticism, conflicting instructions and frequent shouting and screaming" was not severe
and pervasive harassment. Id. at *2, *7; see also Buchhagen v. ICF Int'l, Inc., 545 F. App'x 217,
219 (4th Cir. 2013) (stating that allegations of the supervisor mockingly yelling at the plaintiff in
a meeting, "yelling and pounding her hands on her desk during another meeting," "repeatedly
harping on a mistake" by the plaintiff, "making snide comments" to the plaintiff, "playing
favorites with employees and pitting employees against each other," and "unfairly scrutinizing
and criticizing" plaintiff s use of leave and lack of compliance with directives fall "far short of
being severe or pervasive enough to establish an abusive environment"
Likewise, judges in this District have found that similar or even more egregious situations
do not constitute a hostile work environment.
2d 600 (D. Md. 2003), aff'd,
For example, in Khoury v. Meserve, 268 F. Supp.
85 F. App'x 960 (4th Cir. 2004), the court granted summary
judgment to the employer where the employee complained not only of "disrespectful, frustrating,
critical, and unpleasant" conduct, such as repeated criticism and questions about her background
and when she had learned English, but also one incident in which a supervisor "yelled at
Plaintiff, told her she was incompetent, pushed her down in her chair, and blocked the door to
prevent Plaintiff from leaving while he continued to yell at her." Id. at 614. In another case, the
court found no hostile work environment where the employer showed "disdain and disrespect,"
"yelled at the plaintiff, "ignored her telephone calls and messages," and refused to provide her
See Young v. Giant Food Stores, LLC, 108 F. Supp. 3d 301, 312 (D. Md. 2015)
("And although being disrespectful to and yelling at an employee while ignoring her messages is
not the hallmark of good conduct by a supervisor, 'even incidents that would objectively give
rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive
standard.''' (quoting EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306,315 (4th Cir. 2008))).
Finally, there is insufficient evidence to establish that the unwelcome conduct was
In none of the interactions did Moody use racial epithets or racially charged
Vincent also acknowledged that Moody also yelled at and mistreated certain white
Specifically, Vincent stated that Moody frequently yelled at Hunt, who is white, to
the point that she often brought Hunt to tears.
citation of Hall v. City of Chicago, 713 F.3d 325 (7th Cir. 2013), is
In Hall, the court held that summary judgment should not have been granted on a
hostile work environment claim where a supervisor deliberately gave the plaintiff, a female
plumber, meaningless tasks, such as repeatedly watching videos of the inside of drainpipes and
alphabetizing the same files over and over again, forbade all other employees who worked in the
employee's department "from speaking to or associating with" the plaintiff, "ultimately excluded
[the plaintiff] from every meeting during her time in the Division," and effectively made her "the
Division pariah, undeserving of human interaction."
Id. at 328-29, 331. The supervisor also
engaged in a physical altercation when he bumped the ,plaintiff and made some "gender-specific
comments," including referring to a woman as a "slut" and saying about the plaintiff, "I ought to
slap that woman."
Id. at 329. Here, Moody's yelling was not limited to Vincent or African
American employees more generally, she did not isolate Vincent from others, and Moody made
no racially charged statements to Vincent.
The Court therefore grants summary judgment to
MedStar on Vincent's hostile work environment claim under both Title VII and FEPA.
Williams v. Silver Spring Volunteer Fire Dept., 86 F. Supp. 3d 398, 408 n.1, 412 (D. Md. 2015)
(applying Title VII case law to the plaintiffs hostile work environment claim under FEPA).
Finally, Vincent claims that she was terminated in retaliation for complaining about
discriminatory treatment by Moody. Title VII prohibits retaliation against an employee because
the employee has "opposed" an "unlawful employment practice."
establish a prima facie case of retaliation under Title VII, the plaintiff must make a showing that
(l) the plaintiff engaged in a protected activity; (2) the employer took an adverse employment
action against the plaintiff; and (3) there was a causal connection between the two events. Foster
v. Univ. of Md.-£. Shore, 787 F.3d 243, 250 (4th Cir. 2015).
employer to identify a legitimate, non-retaliatory
reason for taking the adverse employment
If the employer does so, "the burden shifts back to the plaintiff to rebut the
The burden then shifts to the
evidence by demonstrating that the employer's purported non-retaliatory
were not its true reasons, but were a pretext for discrimination."
Id.. "If a plaintiff can show that
she was fired under suspicious circumstances and that her employer lied about its reasons for
firing her, the factfinder may infer that the employer's undisclosed retaliatory animus was the
actual cause of her termination."
Courts take an "expansive view of what constitutes oppositional conduct." DeMasters v.
Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015). It "encompasses utilizing informal grievance
procedures as well as staging informal protests and voicing one's opinions in order to bring
attention to an employer's discriminatory activities."
149 F.3d 253, 259 (4th Cir. 1998). The plaintiffs
Laughlin v. Metro. Wash. Airports Auth.,
actions are assessed in their totality, rather
than as individual, discrete acts, to determine whether the plaintiff has opposed unlawful
DeMasters, 796 F.3d at 418. To qualify as protected activity, the employment
practices opposed may be either "actually unlawful under Title VII" or reasonably believed by
the employee to be unlawful. Boyer-Liberto, 786 F.3d at 282.
At first glance, it is understandable that Vincent would have believed that she was the
subject of retaliation.
On August 18, 2015, she complained to Zeller, the Vice President of
Human Resources that she believed that Moody was discriminating against her because of her
race. On August 21,2015, Zeller convened a meeting between her and Moody at which she was
able to air her grievances. Then on, August 24,2015, she was terminated by Zeller. These facts
certainly establish that she engaged in protected activity and was the subject of an adverse
employment action, and the timing likely gave Vincent the strong impression that the two events
were causally linked. Based on the timing alone, Vincent has established the causation element
of the prima facie case. See King v. Rumsfeld, 328 F.3d 145,151 (4th Cir. 2003) ("(T]hat his
termination came so close upon his filing of the complaint gives rise to a sufficient inference of
causation to satisfy the prima face requirement.").
MedStar, however, has presented evidence of a legitimate, non-retaliatory reason for the
namely, the reduction-in-force.
In an email dated June 30, 2015, McKeon,
position be eliminated because of the "process
resulting from the transition to the Invision software system.
J.R. 115. The
decision had become final by July 14, 2015, by when McKeon had received approval of his
recommendation from Feeley and Whitecotton and had reported the decision to Moody, and by,
at the latest, July 27, 2015, as reflected in an email to Zeller from Nancy Gillooly, Director of
Compensation and Employment at MedStar SMHC, referencing a reduction-in-force and stating,
"The eliminated position is 'Nursing Home Coordinator' which is occupied by Jaicia Vincent."
Where this decision was made before Vincent
in August 2015, there is no causative link.
Under this sequence of events,
termination could not have been caused by a desire to retaliate against Vincent,
because the decision to terminate was made before the protected activity.
Where MedStar has established a legitimate, non-retaliatory reason for the termination,
"the burden shifts back to the plaintiff to rebut the employer's evidence by demonstrating that
the employer's purported non-retaliatory reasons were not its true reasons, but were a pretext for
Foster, 787 F.3d at 250. Vincent cannot make such a showing because there is
no evidence that she engaged in protected activity before August 2015.
She first complained
about Moody's mistreatment of her to Nelson and Hunt in December 2014 and January 2015,
She acknowledged, however, that when she discussed these issues with Nelson and
Hunt, she was confiding in her colleagues and friends and did not expect them to take any action
based on the complaints.
Even if the conversations included reference to Vincent's belief that
she was being discriminated against, they do not resemble either informal grievances procedures
or actions taken "in order to bring attention to an employer's
Laughlin, 149 F.3d at 259. Likewise, although Vincent also aired her complaints about Moody
to Deabay in April 2015, those discussions do not qualify as protected activity because by that
time, Deabay was retired and no longer worked at MedStar in any capacity.
Nor did Vincent's conversations with the Human Resources secretary between February
and July 2015 constitute protected activity.
On those occasions, Vincent stated, "Well, it's
Darlene Moody, and I feel that I'm being mistreated and I just need to talk to [Zeller] and file a
grievance" and provided a summary of her problems. J.R. 27. Vincent acknowledges, however,
that she never told the secretary that she believed Moody's conduct was racially discriminatory,
and she does not provide admissible evidence to support the conclusion that MedStar should
have understood her reference to "mistreatment" as alluding to discrimination.
See Burgess v.
Bowen, 466 F. App'x 272, 282 (4th Cir. 2012) ("Our cases hold that an employee's complaint
constitutes protected activity when the employer understood, or should have understood, that the
plaintiff was opposing discriminatory conduct." (emphasis added)); see also Bowman v. Bait.
City Bd. of Sch. Comm'rs, 173 F. Supp. 3d 242, 248-49 (D. Md. 2016) (concluding that the
related only to general unfair treatment"
to allege that she communicated
alone were "not
her belief to the [employer]
discriminatory practices were occurring").
Instead, Vincent has acknowledged that the first time she reported that she believed she
was being subjected to race discrimination was when she told Moody in August 2015 and then
formally reported the alleged discrimination to Zeller on August 18,2015.
not rebutted MedStar's
Because Vincent has
evidence that the decision to eliminate her position preceded any
protected activity taken by her, and that the decisionmakers were therefore not aware of any
protected activity at the time the decision to terminate her position was made, the Court will
grant summary judgment in favor of MedStar on Vincent's retaliation claim under Title VII. See
Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)
("Since, by definition, an employer cannot take action because of a factor of which it is unaware,
an employer's knowledge that the plaintiff engaged in protected activity is absolutely necessary
to establish [the causation element]."); see also Swigert v. Broadway Servs., Inc., No. RDB-081139, 2009 WL 2139711, at *10 (D. Md. July 15, 2009) (explaining that an inference of
retaliation may be created where there is "[t]emporal proximity between a complaint and a
termination," but that "such an inference may be eliminated by other evidence showing that a
step toward termination had occurred prior to the employee's
For the same reasons, the Court grants summary judgment on Vincent's state law FEPA
See Blakes v. City of Hyattsville, 909 F. Supp. 2d 431, 444 (D. Md. 2012)
(applying the same reasoning to deny both federal and Maryland employment discrimination
claims); Countess v. Maryland, No. ELH-12-02252, 2014 WL 201591, at *5 (D. Md. Jan. 16,
law to the employee's
This lawsuit likely could have been avoided had MedStar not mismanaged this situation
from beginning to end. When Moody displayed verbally abusive behavior to Vincent and other
employees, and undermined her as a supervisor by inviting her subordinate to meetings with
instead of her, the company should have stepped in.
Instead, when Vincent
contacted Human Resources, no one ever responded to her. When the company was preparing to
transition to an automated billing system, McKeon selected Begg, someone with whom he had
worked even before Moody became Vincent's
supervisor, for the only remaining position,
without ever posting the position or allowing Vincent to compete for that position.
Vincent was kept in the dark about her fate, and when she finally directly complained about
Moody, MedStar fired her within a week, without any explanation of the process by which that
decision was reached.
Vincent therefore justifiably feels aggrieved by how she was treated by
both Moody and MedStar.
She has not, however, established evidence that would support a finding that her
made by managers
other than Moody,
that her mistreatment rose to the level of establishing a racially hostile work
environment under the law, or that her poorly timed termination was the result of unlawful
retaliation for her complaints about Moody.
For the foregoing reasons, MedStar's Motion for Summary Judgment is GRANTED.
separate Order shall issue.
Date: August 22, 2017
THEODORE D. CHUA
United States District Ju
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