New v. Family Healthcare et al
Filing
39
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 7/1/2019. (heps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHERYL NEW,
*
Plaintiff,
*
v.
*
FAMILY HEALTH CARE, P.C., et al.,
Defendants.
Civil Action No. 8:17-cv-02379-PX
*
*
***
MEMORANDUM OPINION
Pending before the Court is Defendants Family Health Care, P.C.1 and Dr. Monica
Howard’s (collectively, “Defendants”) Motion for Summary Judgment. ECF No. 32. The
motion is fully briefed, and no hearing is necessary. See Loc. R. 105.6. For the following
reasons, Defendants’ Motion for Summary Judgment is GRANTED.
I.
Background
Plaintiff Cheryl New was employed as a Medical Assistant by Defendant Family Health
Care, P.C. (“FHC”), a private medical practice, from November 2010 to January 15, 2016. ECF
No. 1 ¶¶ 3–9, 23. New’s duties included administering shots, supplying correct doses of
medications, and assisting with routine medical examinations. Id. ¶ 8. Defendant Dr. Monica
Howard is a licensed physician in family medicine and one of FHC’s five physician-owners.
ECF No. 32-5 ¶ 1. In 2014, Dr. Howard became FHC’s managing officer. Id.
On both Christmas Eve and New Year’s Eve in 2015, FHC closed early, although neither
day had been previously scheduled as a holiday for the office. ECF No. 32-5 ¶ 15. FHC still
paid its hourly wage employees for a full eight hours of work for each of the days. Id.
New contends that FHC “manipulated” her time sheets on these two days by crediting
1
Plaintiff incorrectly named Defendant as Family Healthcare, Inc. ECF No. 32 at 1.
eight hours of work instead of giving her four hours of holiday pay, which would have resulted
in her receiving compensation for hours marginally in excess of eight per day. ECF No. 32-7 at
16–18, 22–24.
On January 11, 2016, New emailed FHC administrator, Kevin Day, noting this concern.
ECF No. 32-11 at 5. Day responded that the change was to ensure that all employees “would get
paid for their regularly scheduled hours” even though the office closed early. Id. Several days
later, on January 14, 2016, FHC Practice Administrator, Marie Grimes, emailed New regarding
an “accusation” New had purportedly made that morning “in front of several staff members”
concerning time sheet changes. ECF No. 37-2 at 1. New responded to Grimes that no
“accusations” were made and that, rather, several employees were discussing informally the
changes made to their time sheets for the Christmas Eve and New Year’s Eve hours. Id.
Late in the afternoon on that same day, January 14, a patient arrived at FHC to receive a
Toradol injection. ECF No. 32-8 ¶ 2. New accompanied the patient to a treatment room and
took the patient’s vital signs. ECF No. 32-6 (patient log note written by New). New observed
that the patient “was experiencing a severe headache/migraine” and had “notably elevated” blood
pressure. Id. Because the patient had never taken Toradol before, New asked the patient to wait
in the office for thirty minutes after administering the injection “[a]s a safety precaution . . . to
ensure that she did not experience any adverse reactions.” Id.; see also ECF No. 32-7 at 6 (New
referring to the practice as a “rule if someone’s never had a medication before”). New brought
the patient’s husband to the examination room to wait with her, and New returned to taking calls.
ECF No. 32-6. At 5:31 p.m., New clocked out and left for the evening. Id. The patient and her
husband remained alone in the empty office. ECF No. 32-7 at 9–10.
About an hour after New clocked out, she received a text message from a co-worker that
2
“the patient had contacted the after-hours line saying that they . . . were still in the office.” Id. at
10. New returned “to the office within minutes,” but the patient had left by the time New
arrived. ECF No. 32-6. New called the patient’s husband and scheduled a follow-up
appointment with Dr. Wollman-Rosenwald for the next morning. Id. Dr. Wollman-Rosenwald
was informed about this incident that same evening and immediately phoned Dr. Howard. ECF
No. 32-8 ¶ 2. The two physicians agreed that the nurse responsible for abandoning the patient
should be terminated for “gross dereliction of duty and the potential harm to the patient and the
practice.” Id. ¶ 3.
The following morning, on January 15, 2016, Dr. Wollman-Rosenwald learned that New
was the nurse who left the patient unattended. The doctor directed New “to write a Log Note to
the official patient file” to document the incident. Id. ¶ 6. Dr. Wollman-Rosenwald also
discovered that New had failed to inform her of the patient’s high blood pressure at the time of
injection. Id. ¶ 4. Needing the consent of a majority of the five physician-owners to terminate
New’s employment, Dr. Wollman-Rosenwald emailed the other owners at 8:27 a.m., obtaining
unanimous agreement by noon. Id. ¶ 5; see also ECF No. 32-9.
That same morning, around 8:41 a.m., New emailed Grimes on FHC’s internal messaging
system and attached a letter detailing her concerns about the “changes” made to her time sheets
on December 24 and 31. ECF No. 32-11 at 1; see also ECF No. 32-5 ¶ 12. Although New
copied Dr. Howard on the email, Dr. Howard “did not see or read” the email that day “or at any
time before this suit was filed.” ECF No. 32-5 ¶ 12. At the time the physician-owners agreed to
terminate New’s employment, none of them were aware of New’s wage complaint. Id. ¶ 14; see
also ECF No. 32-8 ¶ 9; ECF No. 32-12 ¶ 5; ECF No. 32-13 ¶ 4; ECF No. 32-14 ¶ 4.
New submitted the patient log note as directed in the afternoon on January 15. Dr.
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Howard reviewed the document to confirm, in her view, that New committed “gross
misconduct.” ECF No. 32-5 ¶ 11. Grimes and Dr. Howard then informed New of the FHC
physician-owners’ decision to terminate her. Id.; ECF No. 32-7 at 38–39 (New confirming that
Grimes said the termination was “due to what happened yesterday”).
On August 19, 2017, New filed this action against FHC and Dr. Howard, alleging
overtime wage violations of the Fair Labor Standards Act (“FLSA”) and Maryland Wage
Payment and Collection Law (“MWPCL”) and retaliation under the FLSA. Id. ¶¶ 34–37, 44–47.
New also alleges that Defendants violated the Consolidated Omnibus Budget Reconciliation Act
of 1985 (“COBRA”) by providing insufficient notice of her rights to continuing healthcare
coverage as required by COBRA. Id. ¶¶ 38–43. FHC and Dr. Howard now move for summary
judgment on all counts. See ECF No. 32.
II.
Standard of Review
Summary judgment is appropriate when the Court, viewing the evidence in the light most
favorable to the non-moving party, finds no genuine disputed issue of material fact, entitling the
movant to judgment as a matter of law. See Fed. R. Civ. P. 56(a); In re Family Dollar FLSA
Litig., 637 F.3d 508, 512 (4th Cir. 2011). “A party opposing a properly supported motion for
summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,’ but
rather must ‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat v.
Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed. R. Civ.
P. 56(e)). “A mere scintilla of proof . . . will not suffice to prevent summary judgment.” Peters
v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
Importantly, “a court should not grant summary judgment ‘unless the entire record shows
a right to judgment with such clarity as to leave no room for controversy and establishes
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affirmatively that the adverse party cannot prevail under any circumstances.’” Campbell v.
Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994) (quoting Phoenix Sav. & Loan,
Inc. v. Aetna Casualty & Sur. Co., 381 F.2d 245, 249 (4th Cir. 1967)). Where the party bearing
the burden of proving a claim or defense “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial,” summary judgment against that party is likewise warranted. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III.
Discussion
A. FLSA Retaliation (Count I)
New contends that her termination violated the FLSA anti-retaliation provision which
makes it unlawful “to discharge or in any other manner discriminate against any employee
because such employee has filed any complaint or instituted or caused to be instituted any
proceeding under or related” to the FLSA. 29 U.S.C. § 215(a)(3). Courts review the sufficiency
of an FLSA retaliation claim under the same McDonnell Douglas framework applicable to Title
VII retaliation actions. Mould v. NJG Food Serv. Inc., 37 F. Supp. 3d 762, 778 (D. Md. 2014)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); see also Darveau v. Detecon,
Inc., 515 F.3d 334, 342 (4th Cir. 2008). Under this framework, New must first establish a prima
facie case that (1) she engaged in a protected activity; (2) Defendants took adverse action against
her; and (3) a causal link exists between the two. Darveau, 515 F.3d at 340. If New establishes
a prima facie case, “the burden shifts to [Defendants] to articulate a legitimate, non-retaliatory
reason for the adverse action.” Mould, 37 F. Supp. 3d at 779 (citing Anderson v. G.D.C., Inc.,
281 F.3d 452, 458 (4th Cir. 2002)). If the Defendant articulates such a legitimate reason, the
burden shifts back to New to raise a genuine dispute as to whether the proffered reason is mere
5
pretext for retaliation. Id.
The parties do not dispute that New’s discharge amounts to an adverse employment
action. Defendants rather argue New’s claim fails on both the first and third prongs of the
McDonnell Douglas prima facie case, and alternatively, that no evidence exists that her
termination was pretextual. Viewing the record evidence most favorably to New, the Court must
agree with Defendants.
Regarding the first prong—whether New engaged in protected activity—New points to
the January 11 and 14 emails. ECF No. 1 ¶¶ 14, 36; ECF No. 37 at 7. Defendants respond that
New’s workplace complaints do not amount to protected activity because they do not allege “an
actual violation” of the FLSA. ECF No. 32-2 at 9. The United States Court of Appeals for the
Fourth Circuit, however, has left open whether “a FLSA retaliation plaintiff must allege facts
demonstrating that he had an objectively reasonable belief that his employer violated the FLSA.”
Darveau, 515 F.3d at 341. Moreover, while intracompany complaints may constitute protected
activity under the FLSA, the complaints must be “sufficiently clear and detailed for a reasonable
employer to understand it, in light of both content and context, as an assertion of rights protected
by the statute and a call for their protection.” Minor v. Bostwick Labs., Inc., 669 F.3d 428, 439
(4th Cir. 2012) (quoting Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14
(2011)).
Neither of the emails in question expressly claim violation for unpaid wages. Rather,
New objected to the way FHC was entering holiday pay into the time system. See ECF No. 3211 at 1, 5. In her January 11 email to Day, New asked if Day “could help [her] understand” the
payroll system and noted her concern that the line item for eight hours of holiday pay would
convey that she did not come to work that day. Id. at 5. Regardless of whether New reasonably
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believed that the timesheet adjustment was an FLSA violation, this email does not provide nearly
enough detail or context to put FHC on “fair notice” that these queries amounted to an FLSA
complaint. Minor, 669 F.3d at 432. Thus, viewing the January 11 email most favorably to New,
it does not constitute protected activity under the FLSA.
As to the January 15 email, even if the Court assumes the query amounts to protected
activity, New has not marshalled any evidence that a causal connection exists between it and her
termination. See Jafari v. Old Dominion Transit Mgmt. Co., 913 F. Supp. 2d 217, 227 (E.D. Va.
2012), aff'd, 538 F. App'x 238 (4th Cir. 2013). To be sure, close “temporal proximity is
sufficient to establish a prima facie causal connection between an employee’s protected conduct
and an employer's adverse action.” Mould v. NJG Food Serv., Inc., No. JKB-13-1305, 2013 WL
4506134, at *2 (D. Md. Aug. 21, 2013). But “[i]f the employer did not know of the protected
activity, then even temporal proximity cannot save a plaintiff's claim.” Lee v. Safeway, Inc., No.
RDB-13-3476, 2014 WL 4926183, at *11 (D. Md. Sept. 30, 2014) (citing Price v. Thompson,
380 F.3d 209, 213 (4th Cir. 2004)).
The record evidence demonstrates that none of the five physician-owners who terminated
New had any knowledge of her complaints. ECF No. 32-2 at 12–13. In fact, Drs. WollmanRosenweld and Howard had decided that the nurse who abandoned the patient should be fired
even without knowing which nurse in particular was responsible. ECF No. 32-5 ¶ 5; ECF No.
32-8 ¶ 3. Moreover, Dr. Wollman-Rosenwald emailed the physician-owners for their consent to
New’s termination before New emailed her letter to Grimes and Dr. Howard. See ECF No. 32-9
at 1. Because the die was cast as to New’s firing before she sent the January 15 email, and
because none of the physicians knew of the complaint prior to authorizing termination, the
retaliation claim must fail as to causation. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268,
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272 (2001) (“Employers . . . proceeding along lines previously contemplated, though not
definitively determined, is no evidence whatever of causality.”); Phillips v. Raytheon Applied
Signal Tech., Inc., No. ELH-11-3230, 2013 WL 5440802, at *28 (D. Md. Sept. 27, 2013), aff’d,
556 F. App’x 265 (4th Cir. 2014) (“When an employer contemplates an adverse employment
action before an employee engages in protected activity, temporal proximity between the
protected activity and the subsequent adverse employment action does not suffice to show
causation.”) (citation omitted).
Alternatively, New has not marshalled any evidence that Defendants’ articulated reason
for her discharge is pretextual. Defendants bear the burden of “of production, not persuasion” in
articulating legitimate grounds for New’s firing. Holland v. Washington Homes, Inc., 487 F.3d
208, 214 (4th Cir. 2007); see also Robinson v. Affinia Grp., Inc., 815 F. Supp. 2d 935, 943
(W.D.N.C. 2011) (“Defendant's burden is low such that it need not persuade the court that it was
actually motivated by the proffered reasons so long as it otherwise articulates a legitimate reason
that is supported by the evidence.”) (internal marks and citation omitted). Poor job performance
is “widely recognized” as a legitimate basis for such adverse employment decisions. Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996).
The record demonstrates that New was fired for abandoning her patient in a matter that
was both contrary to FHC’s legitimate employment expectations and dangerous for the patient.
ECF No. 32-2 at 14–15. New admits that the patient was kept for observation as a “safety
precaution . . . to ensure she did not experience any adverse reactions.” ECF No. 32-6; see also
ECF No. 32-7 at 6. Yet New left the office without ever having checked on the patient after
giving the injection. ECF No. 32-7 at 7–9. Upon learning of the incident, Dr. WollmanRosenwald “was worried about the patient’s well-being, and about all the possible serious
8
consequences to the patient and to FHC due to [New’s] dereliction of duty.” ECF No. 32-8 ¶ 2.
Dr. Howard echoed this sentiment, having “never encountered such a situation before” during all
her years of practice. ECF No. 32-5 ¶ 5. This incident, upon which all the physician-owners
gave their consent to New’s termination (see ECF No. 32-9), is sufficient to establish legitimate
grounds for termination.
Further, no evidence exists that the stated reason for New’s firing was mere pretext for
retaliation. Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995) (“[P]laintiff
must prove ‘both that the reason was false, and that discrimination was the real reason.”)
(citation omitted). New does not even mention the incident in her Complaint or Opposition to
Defendants’ motion. Instead, she relies entirely on the temporal proximity between her letter to
Grimes and her termination to argue that her firing must have been pretextual. ECF No. 1 ¶ 36;
ECF No. 37 at 7. But temporal proximity alone does not rebut Defendants’ legitimate, and
uncontested, ground of termination. See Yancey v. Nat'l Ctr. on Insts. & Alts., 986 F. Supp. 945,
956 (D. Md. 1997) (granting summary judgment where plaintiff did not present any evidence of
pretext “beyond temporal proximity”), aff'd, 141 F.3d 1162 (4th Cir. 1998). Viewing the
evidence most favorably to New, she cannot demonstrate that Defendants’ stated reason for her
termination was pretextual. Defendants are entitled to summary judgment as to the FLSA
retaliation claim.2
B. FLSA and MWPCL Overtime Pay (Counts I and III)
In Counts I and III of her Complaint, New avers she “worked approximately 40 to 60
2
Defendants also attempt to argue that summary judgment should be granted in their favor because New
“neither consented to becoming a party to an FLSA action, nor filed required statutory written consent with the
Court,” citing to 29 U.S.C. § 216(b) as support. ECF No. 32-2 at 18. That FLSA provision, however, applies only
to individuals opting in to FLSA collective actions as “party plaintiffs” and has no relevance here. See Quinteros v.
Sparkle Cleaning, Inc., 532 F. Supp. 2d 762, 771 (D. Md. 2008) (discussing Section 216(b)’s “‘opt-in’ scheme”).
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hours in October of 2015 on a workflow project which she was told to work on at home,”
alleging unpaid overtime wages under the FLSA and MWPCL. ECF No. 1 ¶¶ 37, 47. The
FLSA requires employers to pay non-exempt employees overtime pay of at least one and onehalf times the regular wage for hours worked in excess of 40 hours per week. 29 U.S.C. §
207(a). Under the MWPCL, employers must pay “all wages due for work that the employee
performed before the termination of employment.” Md. Code Ann., Lab. & Empl. § 3-505.3
Defendants argue summary judgment is warranted because they had no knowledge of
New’s alleged “workflow project.” ECF No. 32-2 at 17. To be liable for overtime wages
pursuant to the FLSA, “an employer must have ‘knowledge, either actual or constructive of [that]
overtime work.’” Butler v. DirectSAT USA, LLC, 55 F. Supp. 3d 793, 803 (D. Md. 2014)
(quoting Bailey v. Cty. of Georgetown, 94 F.3d 152, 157 (4th Cir. 1996)). New bears the burden
of establishing such knowledge. Id.
No record evidence supports that Defendants had the requisite knowledge. Indeed, New
admitted in her deposition that she never requested overtime pay or otherwise informed
Defendants that she was working from home. ECF No. 32-7 at 40, 44. Accordingly, New has
failed to raise a genuine issue of material fact that Defendants had actual or constructive
knowledge of her alleged overtime work. Defendants are entitled to summary judgment on
New’s overtime claims.
C. COBRA Notice Claim (Count II)
In Count II, New alleges that Defendants failed to provide timely notice of “her rights to
3
Technically, “[t]he MWPCL does not specifically address payment of overtime wages or provide a cause
of action directed at employer's failure to pay overtime.” Butler v. DirectSat USA, LLC, 800 F. Supp. 2d 662, 670
(D. Md. 2011). However, even if New brought such claims under the Maryland Wage and Hour Law (“MWHL”),
as she should have, the same FLSA analysis “applies equally.” Caseres v. S & R Mgmt. Co., LLC, No. 12-01358AW, 2013 WL 4010894, at *5 (D. Md. Aug. 5, 2013).
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continue health coverage post-employment” under COBRA. ECF No. 1 ¶ 42. COBRA requires
a group health plan sponsor to provide “each qualified beneficiary who would lose coverage
under the plan as a result of a qualifying event” an option of “continuation coverage under the
plan.” 29 U.S.C. § 1161. A “qualifying event” triggering the notice requirement includes
termination so long as the grounds for such termination did not rest on the “employee’s gross
misconduct.” 29 U.S.C. § 1163(2). Once a “qualifying event” occurs, the employer has 30 days
to notify the administrator, who in turn must notify the qualified beneficiary within 14 days. 29
U.S.C. § 1166(a)(2), (c). If the employer is also the plan administrator, the implementing
regulations provide the employer 44 days to provide notice under COBRA. 29 C.F.R. §
2590.606–4(b).
It is undisputed that FHC did not send New timely notice of her right to request continued
coverage. ECF No. 32-2 at 7. FHC did, however, continue to pay for New’s health insurance
coverage following her discharge between January and May of 2016. ECF No. 32-5 ¶ 16; ECF
No. 32-7 at 27. New also applied for and received Medicaid which was awarded retroactively
beginning June 1, 2019. ECF No. 32-7 at 28–29. As a result, New never went without health
insurance coverage. Id. at 29.
Defendants contend that New’s COBRA claim fails as a matter of law because New had
been fired for “gross misconduct,” thus falling under the exception to the “qualifying event” that
prompts the notification requirement. COBRA does not define “gross misconduct,” and “courts
have diverged significantly as to what rises to that level.” Middlebrooks v. Godwin Corp., No.
10-1306 AJT/JFA, 2012 WL 405080, at *4 (E.D. Va. Feb. 7, 2012), aff'd, 474 F. App'x 916 (4th
Cir. 2012). Within this Circuit, at least one court has broadly defined gross misconduct as
behavior that “is so outrageous that it shocks the conscience.” Zickafoose v. UB Servs., Inc., 23
11
F. Supp. 2d 652, 655 (S.D. W. Va. 1998). While another views it as amounting to “carelessness
or negligence of such a degree or recurrence as . . . to show an intentional and substantial
disregard of the employer’s interests or the employees [sic] duties and obligations to his
employer.” Bryant v. Food Lion Inc., 100 F. Supp. 2d 346, 376 (D.S.C. 2000), aff'd, 8 F. App'x
194 (4th Cir. 2001) (quoting Paris v. F. Korbel & Bros., Inc., 751 F. Supp. 834, 838 (N.D. Cal.
1990)). And yet another has determined that the conduct must be “substantially beyond mere
negligence, carelessness, or obstinacy” and must include “sufficient indicia of willfulness,
wantonness, outrageousness, recklessness, intention or deliberate indifference.” Middlebrooks,
2012 WL 405080, at *4.
On one point however, most courts agree: “gross misconduct” amounts to more than a
single event of negligence, “simple mistake,” or “mere inattention to detail.” Nero v. Univ.
Hosps. Mgmt. Servs. Org., No. 04-1833, 2006 WL 2933957, at *4 (N.D. Ohio Oct. 12, 2006);
compare Moore v. Williams Coll., 702 F. Supp. 2d 19, 25 (D. Mass. 2010) (gross misconduct
where plaintiff committed student aid fraud and falsified credentials), aff'd, 414 F. App'x 307
(1st Cir. 2011); Nakisa v. Cont'l Airlines, No. H-00-090, 2001 WL 1250267, at *3 (S.D. Tex.
May 10, 2001) (employee used racial slur and threw apple at co-worker); Zickafoose, 23 F. Supp.
2d at 656 (employee “savagely beat his co-worker”); Collins v. Aggreko, Inc., 884 F. Supp. 450,
454 (D. Utah 1995) (employee drove company vehicle while intoxicated); Burke v. Am. Stores
Employee Ben. Plan, 818 F. Supp. 1131, 1138 (N.D. Ill. 1993) (employee stole from employer),
with Nero, 2006 WL 2933957, at *1, 4 (no gross conduct where medical assistant made a
number of mistakes, including filing lab results in the wrong patient chart, mislabeling a blood
test, and failing to complete a referral).
On this record viewed most favorably to New, the Court cannot find as a matter of law
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that New was terminated for gross misconduct. To be sure, New forgot about a patient and left
for the day. Further, the evidence suggests, but does not conclusively establish, that New
provided substandard medical care in failing to monitor the patient. But as soon as New learned
of her mistake, she returned to the office. No evidence supports that New had been similarly
derelict in the past, and fortunately, no harm came to the patient. The Court cannot conclude as a
matter of law that New was fired for gross misconduct. New’s termination is, therefore, a
qualifying event, triggering COBRA’s notice requirements.
Defendants next contend that New has failed to generate any evidence of damages. New
qualified for Medicaid in September 2016, awarded retroactively, resulting in New paying no
premiums or experiencing a gap in coverage. ECF No. 32-7 at 28–29. Further, New could not
identify any treatment or service that was once covered under her prior insurance but is no longer
under Medicaid. Id. at 33–34 (testifying that electrophysiologist services previously covered by
private insurance now are performed by New’s cardiologist whose services are covered under
Medicaid). If anything, New “received a windfall worth thousands of dollars,” because FHC
continued to provide health insurance for five months after her discharge. ECF No. 32-2 at 22.
Unlike the $400 monthly premium New had to pay when she was employed, FHC paid the
entirety of the premium, over $700 per month, from January to May 2016. ECF No. 32-7 at 31–
32; ECF No. 32-5 ¶ 16. Thus, the record viewed in favor of New’s claim, simply does not
support any actual damages flowing from the COBRA violation.
With respect to statutory damages, 29 U.S.C. § 1332 provides $110 per day, awarded at
the Court’s discretion. 29 U.S.C. § 1332(c)(1); 29 C.F.R. § 2575.502c-1. The purpose of the
statutory penalty “is not to compensate participants for injuries, but to punish noncompliance.”
Faircloth v. Lundy Packing Co., 91 F.3d 648, 659 (4th Cir. 1996) (citing Daughtrey v.
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Honeywell, Inc., 3 F.3d 1488, 1494 (11th Cir. 1993)). While “prejudice to the party requesting
the documents is not a prerequisite to the imposition of penalties,” such “prejudice is a factor that
a district court may consider in deciding whether to impose a penalty,” along with “whether the
administrator acted in bad faith.” Id. (citations omitted).
Defendants argue that New has not marshaled any evidence supporting an award of
statutory damages. The Court agrees. Defendants underscore that customarily courts award
such damages where the Defendant persistently refuses to provide documents or information to
employees regarding COBRA coverage. Middlebrooks, 2012 WL 405080, at *7. No record
evidence demonstrates any similar evidence of FHC intentionally refusing to provide notice or
otherwise acting in bad faith at any other time. ECF No. 32-10 at 12. The notice failure was not
part of a larger pattern or practice of consistent COBRA violations, and New has not generated
any evidence that this particular notice failure prejudiced her. The Court, therefore, grants
summary judgment in Defendants’ favor as to damages.
D. MWPCL Paid Time Off (Count III)
Finally, New asserts she is entitled to “96 hours of earned paid time off (PTO)” from
FHC under the MWPCL. ECF No. 1 ¶ 44. While the MWPCL requires employers to pay “all
wages due for work that the employee performed” prior to termination (Md. Code Ann., Lab. &
Empl. § 3-505(a)), the law does not require employers to pay accrued leave if:
(1) the employer has a written policy that limits the compensation of accrued
leave to employees;
(2) the employer notified the employee of the employer’s leave benefits in
accordance with § 3-504(a)(1) of this subtitle; and
(3) the employee is not entitled to payment for accrued leave at termination under
the terms of the employer’s written policy.
Id. § 3-505(b).
Defendants argue that under the terms of FHC’s written PTO policy, FHC does not owe
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New any further PTO beyond what they have already paid. ECF No. 32-2 at 25. FHC’s PTO
policy states that “[t]he amount of PTO depends on how long the employee will be employed
that year.” ECF No. 32-18 at 1. The policy continues, “when an employee leaves the practice,
for any reason, PTO will be prorated to what would have been earned to that date.” Id.
It is undisputed that New was subject to this PTO policy. ECF No. 32-7 at 43. Further,
New was terminated on January 15, 2016, only 15 days into the calendar year, and so was “due
less than a half day of PTO,” totaling $53.86. ECF No. 32-5 ¶ 17. As to the $53.86, although
FHC erroneously issued a check for a full year of PTO, FHC subsequently sent New a check for
the prorated amount. ECF No. 32-2 at 26 n.9; ECF No. 32-7 at 42 (New Deposition); ECF No.
32-22 (copy of second check). New argues now that she could not cash the check for the $53.86
“because it was unsigned.” ECF No. 32-7 at 42. The Court cannot ascertain from the record
whether this amount was actually paid to New. Accordingly, within fourteen (14) days, the
parties shall submit a joint status report informing the Court as to the status of payment for the
$53.86 owed to New.4
IV.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment (ECF No. 32) is
GRANTED. A separate Order follows.
7/1/2019
____________________________
Date
/S/
______________________________
Paula Xinis
United States District Judge
4
Because the Court is granting summary judgment in favor of Defendants as to all counts, the Court
declines to address Defendants’ argument regarding Dr. Howard’s personal liability. See ECF No. 32-2 at 26–31.
15
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