Doe v. The Johns Hopkins Health System Corporation et al
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 4/6/2017. (kns, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Civil Action No. TDC-16-1635
THE JOHNS HOPKINS HEALTH SYSTEM
CORPORA nON and
SUBURBAN HOSPITAL, INC.,
Plaintiff Jane Doe, a licensed psychologist,
Hospital, Inc. ("Suburban")
was recruited by Defendant
to address a number of possible ethical and regulatory issues at
Suburban and improve compliance with internal policies and applicable law. She now alleges
that after she reported numerous possible violations and conflicts of interest, Suburban fired her
and spread damaging rumors about her fitness to practice psychology.
Doe has brought this civil
action against Suburban and its parent corporation, the John Hopkins Health System Corporation
("JHHS"), alleging retaliation under the False Claims Act, 31 U.S.C.
Md. Code Ann., Health Occ.
3729 to 3733 (2012),
1-501 to 1-506 (West 2008), post-termination
under the MHWWP A, defamation,
Pending before the Court is Defendants'
First Amended Complaint.
Motion to Dismiss Portions of Plaintiffs
A hearing on the Motion was held on March 23, 2017.
reasons set forth below, the Motion is GRANTED IN PART and DENIED IN PART.
The following facts are presented in the light most favorable to Doe, the non-moving
party. Doe, a resident of the District of Columbia, is a licensed psychologist with a doctoral
degree in education.
Suburban is a Maryland corporation that owns and operates a hospital in
JHHS is a Maryland non-stock corporation based in Baltimore, Maryland
and is the sole owner of Suburban.
Doe owned a solo psychology practice for over 25 years. In the summer of 2013, Harry
Gill, the Medical Director of Suburban's
Behavioral Health Department, and Donald Silver,
Corporate Director, recruited Doe to serve as the new Director of Suburban's
Outpatient Mental Health Department ("OMHD").
Suburban's accreditation for the OMHD had
lapsed and its former Director had recently resigned in the wake of significant ethical and
including the practices of completing patient notes before actually
meeting with patients and allowing unlicensed therapists to provide treatment.
Silver and Gill
pledged that if Doe joined the team at Suburban, they would support her in rectifying the ethical
and regulatory failures.
Doe accepted their offer and began work at Suburban in November
2013, curtailing her private practice in order to accommodate her new responsibilities.
Shortly after starting at Suburban, Doe identified various ethical and regulatory violations
that could cause Suburban to lose its accreditation. After reporting each violation internally, Doe
took action to correct each issue. Despite the earlier promises of support, many of her efforts
were met with resistance.
In particular, Doe identified various problems with the billing
practices of Axis Healthcare Group, a private psychiatry services company controlled by Gill
that contracts with Suburban to provide psychiatric services.
These problems included double-
billing to the Centers for Medicare & Medicaid Services ("CMS"); inflating bills payable by
CMS, private insurers, and patients; falsely certifying compliance with CMS regulations; and
providing and billing for unnecessary services.
Doe also discovered that Gill and other Axis
Suburban patients throughout
the Axis network, which she
believed to be a violation of state and federal law. Doe reported her concerns to a number of
Suburban officials, including Gill, Silver, and Jacqueline Schultz, Senior Vice President of
Clinical Operations and Doe's direct supervisor.
Suburban nevertheless took no corrective
action. Schultz was initially supportive of Doe's concerns, but she later cautioned Doe not to use
the word "fraud" in her presence, because Schultz would then be required to report the matter
Doe also learned about, and reported to management, other potential conflicts of interests
that caused her concern, including a 2013 proposal by Gill for a Partial Hospitalization Program
run under his own umbrella corporation and a 2015 proposal for Suburban to engage a company
with which Gill had an undisclosed relationship to provide telephonic outpatient support for
mental health patients.
In 2014, Doe recommended to Silver that an art therapist be terminated
for permitting an unsupervised intern to run Suburban's art therapy program, but management
resolved the matter with a written warning.
Later that year, when Doe recommended that the
same art therapist be terminated for operating the art therapy program without the required
license, Suburban again chose to resolve the matter with a written warning.
Doe also reported
that Silver, who had no medical training, had recommended treatment for patients, only to be
told that the practice had been going on for years. No corrective action was taken. Silver, who
was popular among Suburban's employees, left Suburban in 2015 without explanation, and some
employees blamed Doe for causing his departure.
On August 17,2015, Doe was terminated from her position. At a meeting that day with
Doe and Schultz, Wayne Stockbridge, the Senior Director of Human Resources, informed Doe
that she was being terminated immediately due to a reorganization of her department.
policy requires that an employee affected by reorganization be consulted before termination and
provided six weeks' notice.
Stockbridge asked Doe to sign a severance agreement that was
modified to add provisions releasing claims of whistleblower retaliation and stating that Doe was
unaware of wrongdoing at Suburban or JHHS and had not "reported any compliance matters.
During the meeting, Stockbridge also stated that he had been told that Doe:
a. Created an unpleasant work environment by sharing an office with her staff;
b. Created a disruptive work environment by having employees share an office;
c. Promoted an environment of paranoia by talking quietly or having
conversations in the hallway instead of in the shared office;
d. Invited some, but not all[,] of her staff to a glass-blowing class as a
e. "Gossiped" about staff and made sarcastic "quips" about staff;
f. Sent text messages to staff after hours and on weekends;
g. Intimidated her staffby setting up meetings that were "confidential";
h. "Trapped" Mr. Silver into giving clinical advice;
Held a "personal vendetta" against [an Axis employee], as evidenced by her
asking ... whether [that employee] had committed wrongdoing; and
J. Wore short skirts, sheer pantyhose, open blouses, and no underwear.
Am. Compi. ~ 34, ECF No. 11. Stockbridge told Doe that the allegations were unrelated to her
termination, but that he thought that she should be aware of them.
Doe believed that the
statements were intended to convey a threat that Suburban would spread the allegations more
widely if Doe fought the termination or reported further concerns about fraud. In a telephone
conversation two days later, Stockbridge informed Doe that her termination was based in part on
this list of allegations after all. He acknowledged that he had not personally investigated the
allegations and noted that the allegation related to the glass-blowing class was likely false.
On or about September 9, 2015, Doe, through counsel, informed JHHS that she would
not sign the severance agreement. According to Doe, Suburban and JHHS then began to spread
rumors about Doe in an attempt to discredit her in her professional
Brunkow, an employee at the Washington Center for Psychoanalysis
("the WCP"), informed
Doe that someone at Suburban, whom she declined to identify, had called her and made
disturbing allegations about Doe, including that Doe had been escorted out of Suburban by
hospital security, that she had "lost it," and that she had pulled her skirt up over her head. Am.
Compi. ~ 38. None of the allegations were true. Brunkow later told Doe that a second source
had given her additional negative information about Doe. Doe has been a member of, and held
leadership positions in, the WCP, a professional organization that served as a source of patient
referrals while she was in private practice.
As a result of the allegations made about Doe to
Brunkow, WCP leadership became concerned about Doe's fitness to practice and forced her to
undergo a review by the Colleague and Patient Assistance Committee ("CPAC").
denial of the allegations, CPAC suggested that Doe needed drug or alcohol treatment.
Around the same time, Nina VanSant, a Suburban employee who had previously worked
under Doe's supervision, contacted the Washington School of Psychiatry ("the WSP"), where
Doe held a teaching position.
Van Sant told the WSP that if Doe continued to teach there, she
was going to withdraw from the program, and she made other negative comments to a member
of the WSP steering committee. As a result of Van Sant's comments, the WSP terminated Doe's
teaching position. Doe believes that the WSP steering committee member was the second person
who gave negative information to Brunkow.
Since then, Doe has been ostracized from her
personal and professional networks, has struggled to rebuild her private practice without referrals
from the WCP and the WSP, and has suffered humiliation and mental stress.
The Motion seeks dismissal of Doe's claims of post-termination
retaliation under the
MHWWP A (Count III), defamation (Count IV), and intentional interference
relations (Count V).
Defendants argue that the MHWWP A claim based on post-termination
conduct must be dismissed because that statute does not cover post-termination
Defendants further assert that Doe has failed to state a claim for defamation because
the communications she has identified as defamatory either are not actionable as a matter of law
or are insufficiently pled. Finally, they contend that in the absence of a viable defamation claim,
it must be supported
independent wrongful act.
To defeat a motion to dismiss under Federal Rule of Civil Procedure
complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the court to draw the
inference that the defendant is liable for the misconduct
conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint
as a whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff.
(1994); Lambeth v. Bd. ofComm'rs
Albright v. Oliver, 510 U.S. 266, 268
of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).
Maryland Healthcare Worker Whistleblower Protection Act
Count III alleges that Defendants violated the MHWWP A by retaliating against Doe for
disclosing ethical and regulatory violations at Suburban through a post-termination campaign to
discredit her within her professional community.
These activities included disseminating false
statements to the WCP and the WSP, which led to an inquiry into Doe's professional fitness and
her termination from a teaching position.
The MHWWP A provides that:
[A]n employer may not take or refuse to take any personnel action as reprisal
against an employee because the employee:
(1) Discloses or threatens to disclose to a supervisor or board an activity, policy,
or practice of the employer that is in violation of a law, rule, or regulation;
(2) Provides information to or testifies before any public body conducting an
investigation, hearing, or inquiry into any violation of a law, rule, or regulation by
the employer; or
(3) Objects to or refuses to participate in any activity, policy, or practice in
violation of a law, rule, or regulation.
Md. Code Ann., Health Occ.
"Employee" is defined as "any individual licensed or
certified by a board under this article who performs services for and under the control and
direction of an employer for wages or other remuneration."
action" is not defined.
According to Defendants, this count should be dismissed because the MHWWP A covers
only retaliatory "personnel action" that occurs while the employee is actually employed by the
employer. They claim that "personnel action" within the meaning of section 1-502 requires the
existence of an employment relationship and does not encompass the negative references and
blacklisting activities alleged here.
The Court of Appeals of Maryland has not addressed
whether the MHWWP A protects only current employees or the scope of the term "personnel
action." See Lark v. Montgomery Hospice, Inc., 994 A.2d 968, 977 (Md. 2010) (holding that the
MHWWP A does not extend to "former employees who made no internal reports" before
termination, without addressing whether former employees are generally protected by the Act).
The Court of Appeals has set forth guidance on the appropriate means to interpret
Maryland statutes. "To ascertain the intent of the General Assembly, we begin with the normal,
plain meaning of the language of the statute. If the language of the statute is unambiguous and
clearly consistent with the statute's apparent purpose, our inquiry as to legislative intent ends."
Lark, 994 A.2d at 975 (quoting Lockshin v. Semsker, 987 A.2d 18,28-29 (Md. 2010)). However,
"the plain language must be viewed within the context of the statutory scheme to which it
belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute." ld.
"Where the words of a statute are ambiguous
and subject to more than one reasonable
interpretation, or where the words are clear and unambiguous when viewed in isolation, but
become ambiguous when read as part of a larger statutory scheme, a court must resolve the
ambiguity by searching for legislative intent in other indicia."
ld. Although "remedial statutes
are to be construed liberally in favor of claimants 'to suppress the evil and advance the remedy,'''
Lark, 994 A.2d at 976 (quoting Haas v. Lockheed Martin Corp., 914 A.2d 735, 750-51 (Md.
2007)), "in every case, the statute must be given a reasonable interpretation, not one that is
absurd, illogical, or incompatible with common sense," Lark, 994 A.2d at 976 (quoting Lockshin,
987 A.2d at 29).
Applying these principles, the Court concludes that the MHWWPA's bar on the taking of
action" as a reprisal for reporting does not encompass
communications with the WCP and the WSP aimed at discrediting Doe. Although "personnel
action" is not defined in the relevant statute, Maryland regulations relating to the rights of state
employees define "personnel action" as "an appointment, promotion, disciplinary or corrective
action, acting capacity, reassignment,
decision affecting compensation,
affects an individual's
benefits, training, or any other matter which significantly
Code Regs. 17.04.08.02 (2017).
terms, conditions, or privileges of employment."
In other contexts, courts have construed the term "personnel
action" to consist of "dismissal or any other action, including demotion or transfer, that is the
functional equivalent of dismissal," Stott v. Haworth, 916 Fold 134, 137 n.3 (4th Cir. 1990)
(applying North Carolina law), or "transfer, lay-off, dismissal and other personnel action," Smith
County, 195 Aold 593, 595 (Md. 1963) (quoting a Montgomery
Although these definitions are by no means determinative, they illustrate that the ordinary
meaning of "personnel action" would encompass formal or informal actions effecting a change
in an employee's status at work, such as a hiring, termination, promotion, demotion, transfer, or
"Personnel action" could be read to include changes in the terms and conditions
such as a change in salary, benefits, duties, or working hours; official
recognition such as an award, bonus, or letter of commendation; or adverse actions to penalize an
employee, such as a suspension or reprimand.
plaintiff s field-would
But to interpret the term to include the action
post-termination comments made to professional organizations in the
be to stretch the plain meaning of "personnel
action" beyond its
breaking point. Cf Bechtel v. St. Joseph Med. Ctr., Inc., No. MJG-1O-3381, 2012 WL 1476079,
at *9 (holding that the False Claims Act provision barring retaliatory acts "in the terms and
was "not reasonably
to include post-termination
The Court recognizes that this interpretation
arguably runs contrary to the statute's
994 Aold at 975.
The MHWWP A seeks to protect
whistleblowers from retaliation for reporting misconduct in the healthcare sector, yet failing to
provide legal protection against post-termination dissemination of negative information aimed at
undermining a former employee's professional opportunities leaves whistleblowers vulnerable
and could deter them from coming forward.
As the Supreme Court has acknowledged in a
related context, "[a]n employer can effectively retaliate against an employee by taking actions
not directly related to his employment
or by causing him harm outside the workplace."
Burlington N & Santa Fe Ry. Co. v. White, 548 U.S. 53,63 (2006). Nevertheless, the legislative
decision to prohibit some, but not all, forms of potential retaliation is not necessarily inconsistent
with the statute's remedial purpose.
Where the legislature has chosen clear language that bars
in the form of a "personnel
action," construing this term to encompass
to the WCP and the WSP would be an impermissibly "forced"
interpretation that is "incompatible with common sense."
Lark, 994 A.2d at 975-7 6 (quoting
Lockshin, 987 A.2d at 29).
This conclusion is bolstered by the fact that the Maryland legislature has demonstrated its
willingness and ability to use broader language to prohibit retaliation against employees for
reporting misconduct in other circumstances, but did not do so here. Under the anti-retaliation
of the Maryland
discriminate or retaliate against any of its employees ...
because the individual has opposed"
practices or "made a charge" or otherwise "participated"
employment discrimination complaint.
Md. Code Ann., State Gov't ~ 20-606(f) (2015).
barring any conduct that would "discriminate or retaliate" against an employee who has opposed
the statute bars a range of retaliatory activity that includes, but
extends well beyond, personnel actions.
Where the legislature has elsewhere used broader
language to describe the range of prohibited retaliatory activity, its decision to bar only
retaliatory "personnel actions" under the MHWWP A must be viewed as placing a deliberate
limit on the types of activities barred by this statute. Notably, the United States Supreme Court
drew a similar distinction within Title VII of the Civil Rights Act of 1964 ("Title VII"), 42
U.S.C. ~~ 2000e to 2000e-17 (2012), when it concluded that the "discriminate against" language
describing the bar on retaliation, see id. ~ 2000e-3(a), covered a broader range of conduct than
the narrower language describing the range of conduct constituting employment discrimination,
which consists of acts that "discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment," id. ~ 2000e-2(a).
Burlington Northern, 548
U.S. at 62.
The case law cited by Doe does not alter this conclusion.
In Robinson v. Shell Oil
Company, 519 U.S. 337 (1997), the Supreme Court held that the retaliation provision of Title VII
applies to actions taken against current and former employees and reversed the dismissal of a
complaint alleging that a former employee who had filed an EEOC complaint had been subjected
to unlawful retaliation in the form of negative references to prospective employers.
519 U.S. at 339,346.
The Court relied heavily on the absence of a provision restricting the term
"employee," defined as "any individual employed by an employer," 42 U.S.C. ~ 2000e(t), to
and the fact that the statute provides
a remedy of reinstatement
"employees," which would be applicable only to former employees.
Robinson, 519 U.S. at 342.
Yet even if this Court were to conclude, based on the same absence of a temporal restriction and
the presence of a remedy of reinstatement under the MHWWP A, that the term "employees"
under the MHWWPA includes former employees, Title VII differs significantly in that its antiretaliation provision broadly states that an employer may not "discriminate against any of his
employees" for having "opposed" employment discrimination.
discussed above, this prohibition on retaliatory "discriminat(ion]"
the bar on retaliatory "personnel action" under the MHWWP A.
42 U.S.C. ~ 2000e-3(a).
is significantly broader than
The remammg case law cited by Doe is unpersuasive
v. Harrell, No. 8:08-cv-568-T-27TBM,
(M.D. Fla. Jan. 14, 2009), the court concluded,
because it directly relies on
based on Robinson,
2009 WL 103274
that the Florida
Act ("FW A") prohibiting "retaliatory personnel action" against "employees"
extended to former employees.
Id. at *6-7 (citing Fla. Stat. Ann.
448.101, 448.102 (2013)).
The court's analysis, however, did not specifically address the meaning of the term "personnel
action" or whether it included the conduct at issue there--ealling
employers and damaging her future job prospects. Id. at *7. Likewise, the dicta in Rangarajan
v. Johns Hopkins Health Sys. Corp., No. WMN-12-1953, 2014 WL 6666308 (D. Md. Nov. 21,
2014), stating that "persuasive authority indicates that post-termination
retaliatory action may
fall within the scope of 'personnel action' protected by" the MHWWPA, relied directly on
Robinson and Kissinger-Campbell.
Id. at *3 n.1.
Thus, the Court concludes that, based on the plain language of the statute, Defendants'
with the WCP and the WSP do not fall within the bar on
retaliatory personnel actions under the MHWWP A. The Motion is thus granted as to Count III.
The Court therefore need not and does not address whether the MHWWP A protects only current
employees or extends its reach to former employees as well.
Under Maryland law, to establish a prima facie case of defamation, a plaintiff must
establish that (1) the defendant made a defamatory statement to a third person (a requirement
known as publication); (2) the statement was false; (3) the defendant was legally at fault in
making the statement; and (4) the plaintiff thereby suffered harm. Gohari v. Darvish, 767 A.2d
321, 327 (Md. 2001). Under the first element, a defamatory statement is one "which tends to
expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the
community from having a good opinion of, or associating with, that person."
Rosenberg v. Helinski, 616 A.2d 866,871 (Md. 1992)). A statement that is defamatory per se is
one for which the "words themselves impute the defamatory character," such that the plaintiff
need not plead additional facts demonstrating their defamatory nature.
Metromedia, Inc. v.
Hillman, 400 A.2d 1117, 1123 (Md. 1979). A statement that is defamatory per quod is one for
which extrinsic facts are necessary to demonstrate "the defamatory character of the words sued
Under the second element, a statement is "false" if it was "not substantially correct."
Piscatelli v. Van Smith, 35 A.3d 1140, 1147 (Md. 2012). Establishing the third element, that a
defendant is legally at fault, requires a showing that, at a minimum, the party making the false
statement acted negligently. Hearst Corp. v. Hughes, 466 A.2d 486, 490-92 (Md. 1983). For the
fourth element, actual harm must generally be established, but in cases in which the statement
was defamatory per se and was made with actual malice, harm may be presumed.
Id at 493;
Shapiro v. Massengill, 661 A.2d 202,217-18 (Md. Ct. Spec. App. 1995).
Although Doe asks the Court to consider her defamation claim as a single cause of action
based on a broad, intentional campaign including statements made at her termination meeting
and others made to the WCP and the WSP, each alleged defamatory statement constitutes a
"separate instance of defamation" that must be specifically alleged. English Boiler & Tube, Inc.
v. We. Rouse & Son, Inc., 172 F.3d 862,1999
WL 89125, at *3 (4th Cir. 1999) (unpublished
decision). See also Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 758 (D. Md. 2015) ("To satisfy
federal pleading standards, a plaintiff must specifically allege each defamatory statement.");
Gainsburg v. Steben & Co., Inc., 838 F. Supp. 2d 339, 344 (D. Md. 2011) (stating that a plaintiff
cannot simply allege "a pattern of false statements made for the purpose of bringing [the
plaintiff] into disrepute").
Thus, the Court considers each alleged defamatory statement in tum.
As set forth below, the Court finds that Doe' has properly pleaded false, defamatory statements
by Stockbridge and to Brunkow of the WCP.
Doe first alleges that Stockbridge, Suburban's
Senior Director of Human Resources,
defamed her at the meeting at which she was terminated when he made false statements about
her in the presence of Schultz, Doe's direct supervisor.
In particular, the statement that Doe
"[w]ore short skirts, sheer pantyhose, open blouses, and no underwear," Am. CompI. ~ 34, was
plainly of a nature that would cause public scorn or ridicule. Doe alleges that this statement was
published to Schultz, that it was false, and that Stockbridge knew that it was false. The statement
was defamatory per se because "the words themselves impute the defamatory character."
Metromedia, 400 A.2d at 1123. Doe has alleged that she suffered both reputational harm and
emotional distress as a result of these statements.
argue that Doe has not stated a claim for defamation because (1) the
statement was not published to a third party; and (2) the employer-employee
applies. Relying on Gray v, AT&T Corp., 357 F.3d 763 (8th Cir. 2004), Defendants argue that
Stockbridge's statement in the presence of Schultz does not constitute defamation because intracompany communications
in the regular course of business between employees of the same
corporation are not publications.
never adopted such a rule.
Id. at 766 (applying Missouri law). Maryland, however, has
Rather, Maryland cases involving claims of defamation in the
workplace have either directly referred to statements between employees of a company as
publications, or have presupposed defamatory statements' publication in deciding whether the
statements were proteGted by privilege.
See, e.g., Marchesi v. Franchino, 387 A.2d 1129, 1131
(Md. 1978) (holding that defamatory statements by an employee to a manager about another
employee could be protected by conditional privilege); Gen. Motors Corp. v. Piskor, 352 A.2d
810, 814 n.2 (Md. 1976) (stating that the jury was "properly permitted to conclude" that the
defendant's employees defamed the plaintiff to his fellow employees); Henthorn v. W Md. Ry.
Co., 174 A.2d 175, 180 (Md. 1961) (describing the "publication" of defamatory statements about
the plaintiff during an internal hearing before a trainmaster); see also Shapiro, 661 A.2d at 21819 (concluding that an employer's oral statements to the plaintiffs
co-workers concerning the
reasons for the plaintiffs termination were defamatory per se, but considering whether they were
protected by the qualified privilege); Happy 40, Inc. v. Miller, 491 A.2d 1210, 1214 (Md. Ct.
Spec. App. 1984) (stating that the plaintiffs
manager "published" defamatory statements about
the plaintiff to her fellow employees); Rabinowitz v. Oates, 955 F. Supp. 485, 488-89 (D. Md.
Thus, under Maryland
law, an intra-company
Defendants, however, correctly assert that Maryland law recognizes a qualified privilege
arising out of the employer-employee
relationship in defamation cases.
Gohari, 767 A.2d at 328; see also, e.g., McDermott v. Hughley, 561 A.2d 1038, 1046 (Md.
This privilege arises from the common law principle that a defendant "may escape
liability for an otherwise actionable defamatory
statement, if publication
of the utterance
advances social policies of greater importance than the vindication of a plaintiff s reputational
Marchesi, 387 A.2d at 1131 (citations omitted).
For example, "[a] defamatory
statement dealing with reasons for an employee's discharge may be privileged if communicated
or to a recipient . . . 'who justifiably is entitled to receive it. '" Leese v.
Baltimore Cty., 497 A.2d 159, 176 (Md. Ct. Spec. App. 1985) (quoting Happy 40, Inc., 491 A.2d
at 1214), abrogated on other grounds by Harford Cty. v. Town of Bel Air, 704 A.2d 421 (Md.
The privilege can be lost, however, if the defendant made the allegedly defamatory
statement with malice, defined as "actual knowledge that his or her statement is false, coupled
with his or her intent to deceive another by means 'of that statement." Seley-Radtke v. Hosmane,
149 A.3d 573,576 (Md. 2016) (quoting Piscatelli, 35 A.3d at 1147).
Although the qualified privilege may be applicable to the Stockbridge statements, it is
premature to dismiss the defamation claim on this basis. The qualified privilege is an affirmative
defense, Shapiro, 661 A.2d at 219 n.ll, and a motion to dismiss under Rule 12(b)(6) "does not
generally invite an analysis of potential defenses to the claims asserted in the complaint."
Shore Markets, Inc. v. JD. Assocs. Ltd. P'ship, 213 F.3d 175, 185 (4th Cir. 2000). A court may
consider defenses on a motion to dismiss only when "the face of the complaint clearly reveals the
existence of a meritorious affirmative defense." Id. "The granting of a motion to dismiss on the
basis of an asserted conditional privilege ... is not appropriate where the complaint alleges facts
that would support an abuse of that privilege."
Woodruffv. Trepel, 725 A.2d 612, 623 (Md. Ct.
Spec. App. 1999).
The Court is not satisfied that the Amended Complaint clearly reveals the validity of the
conditional privilege because the privilege "may be lost if abused," Leese, 497 A.2d at 176, and
the Amended Complaint alleges facts that, viewed in the light most favorable to Doe, support an
inference of abuse. Abuse of the privilege occurs if the statement was not made "in furtherance
of the interest for which the privilege exists," or was communicated to a third person other than
someone "whose hearing is reasonably believed to be necessary or useful to the protection of the
Id. Abuse also occurs if the statement was made with "malice" in that it was made
with "actual knowledge" that the "statement is false" and with the "intent to deceive another by
means of the statement." Piscatelli, 35 A.3d at 1148.
According to the Amended Complaint, Stockbridge told Doe that the allegations "had
nothing to do with the termination, but that he thought she should be aware of them."
CompI. ~ 34. Only later, according to Doe, did Stockbridge revise his story and claim that the
offensive and embarrassing accusations were part of Defendants' rationale for firing her. Thus,
it is not clear whether the statement was made in furtherance of the "applicable societal interest"
underlying the qualified privilege.
See Woodruff, 725 A.2d at 622. Moreover, Doe effectively
alleged malice by asserting that Stockbridge acknowledged that some of the statements were not
true and that she understood the statements to convey a threat that if Doe fought the termination
or exposed fraud at Suburban, the false allegations would be disseminated further.
Stockbridge acted with malice, which would render the qualified privilege inapplicable, is a
question of fact not properly resolved on a motion to dismiss. Piscatelli, 35 F.3d at 1148; Leese,
497 A.2d at 177 ("While the existence of a privilege is an issue of law, its forfeiture by abuse is
an issue offact.");
Woodruff, 725 A.2d at 623 (denying a motion to dismiss raising the defense of
a qualified privilege where the complaint alleged facts supporting actual malice).
therefore finds that Doe has alleged a plausible defamation claim arising from Stockbridge's
Defendants also assert that Doe has failed to state a claim for defamation arising from
statements made to Katherine Brunkow of the WCP.
The Amended Complaint alleges that
shortly after Doe's attorney notified Defendants that Doe would not sign the proposed severance
agreement, a Suburban employee contacted Brunkow and told her that Doe "was escorted out of
Suburban Hospital by security, that she 'lost it,' and that she pulled her skirt up over her head."
Am. CompI. ~ 38. Doe contends that these statements were defamatory because they negatively
affected her standing in her professional community, as reflected by the WCP's immediate
ordering of a CPAC review to assess her fitness to practice psychology.
Doe also alleges that the
statement was false and that it was intended to harm her reputation in the community.
specifically alleged that she has lost business opportunities from the loss of professional referrals
as a result of these statements.
Defendants argue that this defamation claim fails to meet the pleading requirements of
Federal Rule of Civil Procedure 8(a) because Doe has not identified which Suburban employee
made the statement to Brunkow or alleged that the unidentified person had the authority to make
such statements or did so within the scope of employment.
They assert that without such
information, there is insufficient detail to permit them to respond meaningfully.
approximately when the statement was made, the content of the statement, and that an employee
of Suburban published it.
Considered as a whole, the Amended Complaint supports the
inference that this employee was acting on behalf of Suburban as part of an effort to discredit
Doe in retaliation for her failure to agree to the terms of the severance agreement. Although Doe
does not presently have knowledge of the Suburban employee's identity, such information can
obtained by all parties through a deposition of Brunkow. Thus, the defamation claim should not
Southern Volkswagen, Inc. v. Centrix Financial, LLC, 357 F. Supp. 2d 837 (D. Md.
2005), relied upon by Defendants, does not alter this conclusion.
In Southern Volkswagen, the
allegations of defamation were so vague and inconsistent that the court could not even determine
whether the harm alleged met the $75,000 threshold to establish diversity jurisdiction.
Id. at 844.
Although the court thus provided guidance to the plaintiff on what more specific, detailed
information to include in an amended complaint, that guidance is not fairly read to establish a
heightened pleading standard for defamation claims or minimum pleading requirements in order
to state a claim for defamation.
See id. at 844-45; Ruyter v. Md. CVS Pharm., LLC, No. TDC-
14-2541, 2015 WL 759425, at *6 (D. Md. Feb. 20, 2015).
The Motion is denied as to the
statement to Brunkow that Doe "was escorted out of Suburban Hospital by security, that she 'lost
it,' and that she pulled her skirt up over her head." Am. CompI. ~ 38.
However, the allegation that Brunkow received "negative information from a second
source, whom she described as a 'senior person, who had heard from younger people,''' id., is
insufficient to state an additional claim of defamation. Not only is there insufficient information
about the content of the communication
by which to assess whether it could constitute a
that the speaker might have been Sharon
Alperovitz, the Acting Chair of the WSP Steering Committee, reveals that the Amended
Complaint does not provide sufficient basis to indicate that the speaker was a Suburban
Thus, to the extent that Doe seeks to assert a defamation claim on the basis of this
"negative information," the Motion is granted.
Such a claim is dismissed without prejudice
because the Court is cognizant that discovery could unearth additional facts that would permit
Doe to amend her complaint to state a claim relating to this incident.
Van Sant Statements
Doe further alleges that the statements by Nina Van Sant, a Suburban employee, to the
WSP constituted defamation. According to the Amended Complaint, Van Sant stated that if Doe
continued to teach a particular class at the WSP, Van Sant would withdraw from the class. Van
Sant also allegedly made negative comments about Doe to either Alperovitz or another member
of the WSP steering committee.
These statements led to the WSP's decision to terminate Doe's
Defendants argue that Van Sant's statements expressed a personal opinion that is not
actionable, that it has not been established that Van Sant was acting in her capacity as a
Suburban employee when she spoke, and that the allegation of "negative comments" is not
enough to state a claim for defamation.
The allegation that Van Sant threatened to withdraw
from WSP's educational program if Doe continued to teach a class does not constitute a
defamatory statement because it cannot reasonably be interpreted as stating "actual facts" about
an individual that are "provably false." Milkovich v. Lorain Journal Co., 497 U.S. 1,20 (1990);
Biospherics, Inc. v. Forbes, Inc., 151 F.3d 180, 184 (4th Cir. 1998). As with the unspecified
comments to Brunkow, the claim that Van Sant provided "negative information" to the WSP is
insufficiently specific to support a defamation claim. Thus, the Motion is granted to as to the
defamation claim based on statements by Van Sant.
This aspect of the defamation claim is
dismissed without prejudice to a later motion to amend based on additional facts that may be
uncovered during discovery on the intentional inference with business relations claim.
Intentional Interference with Business Relations
Defendants also assert that Doe has failed to state a claim for the common law tort of
with business relations, also known as wrongful interference
contractual or business relations.
The elements of this cause of action are: (1) intentional and
willful acts; (2) calculated to cause damage to the plaintiffs in their lawful business; (3) done
with the unlawful purpose to cause such damage and loss, without right or justifiable cause on
the part of the defendants (which constitutes malice); and (4) actual damage and resulting loss.
Kaser v. Fin. Prot. Mktg., Inc., 831 A.2d 49,53 (Md. 2003). The Court of Appeals of Maryland
[T)he two general types of tort actions for interference with business relationships
are inducing the breach of an existing contract and, more broadly, maliciously or
wrongfully interfering with economic relationships in the absence of a breach of
contract. The principle underlying both forms of the tort is the same: under
certain circumstances, a party is liable if he interferes with and damages another
in his business or occupation.
Nat. Design, Inc. v. Rouse Co., 485 A.2d 663, 674 (Md. 1984). Where, as here, no contract is
involved, a "broader right to interfere with economic relations exists."
Id. Because this tort
requires more than mere competition, a claim for intentional interference with business relations
must include "conduct that is independently wrongful or unlawful, quite apart from its effect on
Alexander & Alexander Inc. v. B. Dixon Evander &
Assocs., Inc., 650 A.2d 260,271 (Md. 1994). Such wrongful or unlawful acts include "common
law torts and violence or intimidation, defamation, injurious falsehood or other fraud, violation
of criminal law, and the institution or threat of groundless civil suits or criminal prosecutions in
Id. (quoting K & K Mgmt. v. Lee, 557 A.2d 965, 979 (Md. 1989)). "In addition,
'actual malice,' in the sense of ill will, hatred or spite, may be sufficient to make an act of
interference wrongful where the defendant's
malice is the primary factor that motivates the
interference," and where the malice was not "incidental" to the "pursuit of legitimate commercial
goals." Alexander, 650 A.2d at 271.
According to Defendants, the intentional interference with business relations claim rises
or falls with Doe's defamation
claim, and Doe has failed to state a plausible claim for
This argument fails because this Court has found that Doe has stated a plausible
defamation claim. See supra part III. Moreover, the Court finds that Doe has stated a claim for
intentional interference with business relations arising from the alleged negative statements to
the WCP and the WSP, regardless of whether those statements are specific enough to suppqrt a
claim for defamation.
Doe has asserted that false statements were made both to Brunkow at the
WCP and by Van Sant to officials at the WSP that depicted her in such a negative light that the
WCP required her to undergo a review by CPAC to assess her fitness to practice psychology, and
the WSP terminated
her teaching position.
There was no business reason for Suburban
employees to make derogatory statements about Doe to the WCP and the WSP. By alleging that
the statements were known to be false, were made "without justifiable
cause," and were
"calculated to interfere and cause damage," Am. Compi. ~ 68, Doe has effectively alleged that
that these activities included "injurious falsehoods" that were wrongful and asserted with malice.
Such a claim is plausible in the context of the allegations that Doe was terminated by Suburban
because she reported regulatory and ethical violations, that after she refused to disavow such
allegations she was subjected to allegedly defamatory statements, and that the statements to the
WCP and the WSP resulted in significant negative professional consequences. The Court finds
therefore that the allegations support a reasonable inference that those negative statements were
attributable to Suburban and were made with malice and the intention to interfere with Doe's
professional livelihood and ability to rebuild her career. See E.l du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (stating that when ruling on a motion to
dismiss under Rule 12(b)(b), "all reasonable
must be drawn in favor of the
complainant" (quoting Nemet Chevrolet, Ltd. v. ConsumerajJairs.com, Inc., 591 F.3d 250, 253
(4th Cir. 2009))). The Court therefore denies the Motion as to the claim of intentional
interference with business relations.
For the foregoing reasons, the Motion to Dismiss Portions of the Plaintiffs
Amended Complaint is GRANTED IN PART and DENIED IN PART. The Motion is granted as
to Count III, which is dismissed with prejudice, and Doe's defamation claims relating to the
unspecified statements to the WCP and all statements to the WSP, which are dismissed without
prejudice. The Motion is denied as to all other claims. A separate Order shall issue.
Date: April 6, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?