Ezeh v. Fresenius Medical Care Kami Partners, LLC, No. 1:2011cv03441 - Document 34 (D. Md. 2012)

Court Description: MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 8/8/12. (bmhs, Deputy Clerk)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND PERPETUA U. EZEH, : Plaintiff, : v. : BIO-MEDICAL APPLICATIONS OF MARYLAND, INC. d/b/a FRESENIUS MEDICAL CARE OF PORTER DIALYSIS ROSEDALE, : Civil Action No. GLR-11-3441 : : Defendant. : MEMORANDUM OPINION THIS MATTER is before the Court on Defendant Bio-Medical Applications of Maryland, d/b/a Fresenius Medical Care of Porter Dialysis Rosedale s alternative, for ( FMC ) Summary Motion Judgment to Dismiss ( Motion ). or, (ECF in No. the 18). Plaintiff Perpetua U. Ezeh ( Ezeh ) alleges termination on the basis of race and national origin (Count I), termination on the basis of violation III). reprisal of FMC (Count public seeks II), policy dismissal under or, and wrongful Maryland in the termination common law alternative, judgment on Counts II and III of Ezeh s Complaint. in (Count summary The issues have been comprehensively briefed, therefore, no oral argument is necessary. See Local Rule 105.6 (D.Md. 2011). For the reasons that follow, FMC s Motion is granted in part and denied in part. BACKGROUND1 I. Ezeh, an African-American woman of Nigerian national origin, began working for FMC on or about October 20, 2008, as a Clinical Manager in FMC s Rosedale Clinic. dialysis centers and provides capacity as Clinical Manager, FMC operates kidney dialysis Ezeh treatment. supervised In two her full-time nurses; Sue Barton ( Barton ) and Ahman Calilung. Carol Miller ( Miller ), supervisor Director and her of Operations, first-line was Ezeh s supervisor was second-line Area Manager, Markswell Nwachinemere ( Nwachinemere ). Miller is Caucasian and Nwachinemere is of African descent. According to Ezeh, Miller held a bias against African-Americans, particularly those originating from African nations, and explicitly expressed her bias by allegedly stating the Africans have to go, characterizing complaining Ezeh s work that Nwachinemere presentation as was dumb, very and animated. Miller allegedly sought to remove African subordinates from FMC by treating non-African employees favorably and discriminatorily instituting disciplinary actions. A. Rosedale Clinic Water System Crisis Ezeh s first allegation of wrongful conduct arose on January 29, 2009. That day, the water system malfunctioned at                                                              1 Unless otherwise noted, the following facts are taken from the Complaint and are viewed in a light most favorable to Ezeh. 2   the Rosedale Clinic. As a result of this problem, patients could not receive their dialysis treatment at that location. During the malfunction, Ezeh was out of the office pursuant to orders from her dentist regarding a tooth ache. On that day, Barton called and spoke with Ezeh several times to receive instruction regarding patient rescheduling and transfers. to the Miller On the third call, Barton requested that Ezeh come clinic, that but Ezeh Ezeh failed refused. to Barton manage the then water complained system to crisis. Subsequent to Barton s complaint, Nwachinemere contacted Ezeh and requested that she return to the clinic and oversee the patient rescheduling and transfers. After the crisis resolved, and allegedly upon Miller s insistence, Nwachinemere issued Ezeh a written reprimand regarding her failure to effectively manage the clinic during the crisis. (See Def. s Mot. Ex. 1, ECF No. 18-2). B. Complaints Regarding Barton s Performance Improper Administration of Prescription Drugs and Alleged Ezeh next alleges that in May 2009, Barton, who allegedly has a history requested a of dose drug of addiction, the drug complained Phenergan, of a nausea and habit-forming prescription drug, from the Clinic s Medical Director Dr. Al Talib ( Talib ). Talib agreed to the request, but Barton asked 3   an unqualified technician to administer the intramuscular injection. Ezeh also alleges that, while she was away at a clinical managers meeting, clinic staff complained that Barton slept on duty, thereby leaving patients unattended. As a result, Ezeh called another nurse to finish Barton s shift. The next day, Barton allegedly asked an unauthorized technician to inject her with Phenergan and fell asleep on duty again. This permission. Nursing, time Ezeh issued a Barton reported written did not Barton to reprimand, acquire the and a physician s Maryland notified Board of Miller of Barton s conduct. On or about June 4, 2009, Miller allegedly confronted Ezeh about reporting allegedly told Barton s Ezeh that conduct she to could authorities. not reprimand Miller employees without Miller s permission; a restriction Miller did not impose on non-African clinical managers. In the summer of 2009, Barton allegedly refused to fulfill her duties or complete required training. When Ezeh sought permission from Miller to reprimand Barton, Miller refused her request. C. Failure to Address Staffing Shortages Ezeh also alleges Miller scheduled insufficient staff for shifts supervised by African clinical managers, including Ezeh, thereby forcing them to perform tasks beyond their managerial 4   duties. Specifically, in or about September 2009, FMC allegedly failed to maintain an adequate labor pool for its clinics and prohibited clinic managers from seeking assistance from staffing agencies without approval from the Regional Vice President. For example, on September 7, Ezeh filled a serious staffing shortage at the clinic without the assistance of her supervisors. Again, on September 10, Ezeh sent an e-mail to FMC s employees seeking assistance for a September 11 staffing shortage, which included a request for two technicians. A manager at another clinic agreed to transfer one nurse to Ezeh s location. That nurse, however, had been previously designated by Miller to work at the Pikesville location. Ezeh attempted to change Miller s mind, but Miller was unresponsive. 18-3). work (See Def. s Mot. Ex. 2, ECF No. Ezeh then contacted Talib who ensured the nurse would with Ezeh. Miller thereafter manager of the new arrangement. informed the Pikesville She failed, however, to address Ezeh s request for technicians. This required Ezeh and one nurse to monitor five patients. D. Wrongful Discharge On September 14, 2009, Ezeh sent an e-mail to Regional Vice President Gary Booth ( Booth ) and Regional Quality Manager Susan Wilson ( Wilson ) disclosing Barton s alleged drug use, patient neglect, and refusal to attend training; the September 10 staffing shortage; and her conflict with Miller. 5   (Def. s Mot. Ex. 3, ECF No. 18-4). In closing, Ezeh expressed confusion over such treatment and her need to find peace and justice for what is right and wrong. (Id.). On September 15, 2009, during the clinic s monthly quality indicator meeting, Ezeh attempted to raise the issues identified in the September 14 e-mail. address the issues. Ezeh alleges Miller refused to This inaction upset Ezeh and caused her prolapsed mitral valve to become aggravated. According to Ezeh, she left the meeting, took prescription medication to abate her symptoms, and met with her physician who prescribed a two-day regimen of a mild tranquilizer. Ezeh s physician also ordered her to take off a few days to recover. Upon her return to the clinic on September 17, Ezeh met with Miller and Nwachinemere. At that time, Miller informed Ezeh that her verbal resignation from the previous week was accepted. Over Ezeh s protest that she did not resign, Miller terminated her employment. 6). (See Def. s Mot. Ex. 5, ECF No. 18- According to Ezeh, Miller s refusal to allow Ezeh to remain employed with FMC contravenes Miller s previous rescission of a Caucasian technician s written resignation. On October 2, 2009, Ezeh filed a discrimination complaint with the Equal Employment Opportunity Commission ( EEOC ). The EEOC issued a Dismissal and Notice of Right to Sue on August 31, 2011. Ezeh commenced this action against FMC on November 29, 6   2011, and filed an Amended Complaint on January 9, 2012. filed the pending Motion on March 12, 2012. FMC Ezeh opposes the Motion. STANDARD OF REVIEW2 II. [T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks and alterations omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead plausible, not merely conceivable, facts in support of her claim. 544, 570 (2007). See Bell Atl. Corp. v. Twombly, 550 U.S. The complaint must state more than labels and conclusions, and a formulaic recitation of the elements of a                                                              2 When matters outside the pleadings are presented to and not excluded by the Court, a Rule 12(b)(6) motion must be treated as one for summary judgment under Rule 56. Fed.R.Civ.P. 12(d). In this District, however, an exception to the general rule is made for documents which are referred to in the Complaint and upon which Plaintiff relies in bringing the action. White v. Mortgage Dynamics, Inc., 528 F.Supp.2d 576, 579 (D.Md. 2007)(citations omitted). In such cases, the documents appended to defendant s motion to dismiss do not convert the motion into one for summary judgment. Each of FMC s exhibits, with the exception of Exhibit 4, are referenced in the Complaint and relied upon by Ezeh. Moreover, the Court does not rely upon Exhibit 4 in making its ruling. Therefore, FMC s Motion is not converted into one for summary judgment. 7   cause of action will not do. however, assume the Id. at 1965. veracity [of The court must, well-pleaded factual allegations] and then determine whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). III. DISCUSSION A. Title VII Termination on the Basis of Reprisal (Count II) The Court denies, without prejudice, FMC s Motion as to Count II because, at this juncture, Ezeh has sufficiently pled a Title VII retaliation claim. Title VII of the Civil Rights Act of 1964, as amended, prohibits [its] an employer employees . . from . discriminat[ing] because [the against employee] any opposed of any practice made an unlawful employment practice by this subchapter . . . . 42 U.S.C. § 2000e-3(a). The initial burden is on Ezeh to establish a prima facie case of retaliation under Title VII. E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). To establish a prima facie case of retaliation, Ezeh must prove (1) she engaged in a protected activity, (2) FMC took an adverse employment action against her, and (3) the adverse employment action was causally activity. Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). 8   connected to Ezeh s protected FMC argues that Ezeh s claim should be dismissed because she failed to allege two elements: (1) that she engaged in a protected activity; and (2) that a causal connection existed between her termination and the (Def. s Mem. Supp. Mot. 7-10). alleged protected activity. Specifically, FMC contends Ezeh did not engage in a protected activity because the e-mails upon which she rely fail to assert discriminatory treatment. (Id.). According to FMC, Ezeh was terminated due to her managerial ineffectiveness. (Id.). Ezeh avers that the absence of magic discriminatory words in her e-mails should not preclude her from circumventing FMC s Motion because she clearly discriminatory practices. 10). disclosed Miller s alleged (Pl. s Mem. Opp n to Def. s Mot. 8- Moreover, Ezeh avers that discovery will produce evidence that her e-mails are responses to verbal complaints she made expressly in opposition to racist and discriminatory conduct. (Id. at 10-11). Ezeh also avers she s pled the temporal proximity, animus, and adverse action necessary to establish a causal connection between her protected activity and subsequent termination. (Id. at 11-13). Assuming Ezeh s allegations are true, the Court finds it premature to dispose of Count II. The two e-mails, referenced by both parties, are dated September 10, 2009, and September 14, 2009, respectively. (See Def. s Mot. Exs. 2-3). Both e-mails describe the tension between 9   Ezeh and Miller without an explicit reference to discrimination. The September 14 e-mail, however, references Ezeh s confusion over such treatment and the assertion that the e-mail is her last resort to find peace and justice for what is right and wrong. (Id. Ex. 3, at 2). Moreover, the timing of Ezeh s termination in relation to her complaints is close enough to establish a causal connection through temporal proximity. Whether Ezeh s e-mails are, as she alleges, a response to prior verbal complaints of discriminatory conduct may be revealed at the conclusion of discovery. Accordingly, FMC s Motion is denied without prejudice as to Count II. B. Wrongful Termination in Violation of Public Policy under Maryland Common Law (Count III) The Court grants FMC s Motion as to Count III because a statutory remedy exists for Ezeh s claim. Relying upon the seminal case of Makovi v. Sherwin-Williams Co., 561 A.2d 179 (Md. 1989), FMC argues that this count should be dismissed because the Health Care Worker Whistleblower Protection Act ( WPA )3 provides a remedy, thereby removing Count                                                              3 The WPA provides in part that an 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 . . . . Md. Code Ann., Health Occ. § 1-502(1). Moreover, any employee subject to a retaliatory personnel action 10   III from the purview of this tort claim.4 (Def. s Mem. Supp. Mot. 12-15). FMC argues in the alternative that even if a statutory remedy were not available, Ezeh failed to articulate a basis for the alleged violation of a clear mandate of public policy. (Id. at 13). Ezeh counters that her wrongful discharge claim is not based upon the WPA, but a codified code of ethics (Maryland Code of Regulations [ COMAR ] sections 10.27.09.03 and 10.27.19.02)5 that require her unlawful conduct.6 to act as a patient advocate by reporting (Pl. s Mem. Opp n to Def. s Mot. 18-21). Moreover, Ezeh argues that the Court of Appeals of Maryland permits wrongful discharge tort actions to be filed in tandem with whistleblower actions if the employer s unlawful actions reach beyond the scope of the whistleblower protections. (Id.                                                                                                                                                                                                   may file a civil action within one year after the violation, or within one year after the employee first became aware of the alleged violation. § 1-504. 4 FMC also argues this claim should be dismissed because Ezeh resigned and therefore was not terminated. The Court will not address this argument, however, because this count will be dismissed on another ground. 5 The ethics portions of these sections state, in part, that a nurse shall [a]ct to safeguard a client and the public if health care and safety are affected by the incompetent, unethical, or illegal practice of any person . . . . Md. Code Regs. 10.27.19.02(A)(3) and [a]ct as a client advocate and assist clients to advocate for themselves . . . . Md. Code Regs. 10.27.09.03(E)(2)(c). 6 Ezeh also asserts a second public policy argument against working in an under-staffed clinic in violation of Maryland regulations. Ezeh s Opposition, however, primarily focuses on her obligation to report Barton s illegal conduct. 11   at 20-21). In support of her argument Ezeh relies upon Insignia Residential Corp. v. Ashton, 755 A.2d 1080 (Md. 2000), and Lark v. Montgomery Hospice, Inc., 994 A.2d 968 (Md. 2007). In Maryland, an at-will employee may be discharged at any time unless the motivation for the discharge contravenes some clear mandate of public policy. 432 A.2d 464, 473 (Md. 1981). Adler v. Am. Standard Corp., In such cases, the terminated employee may file a wrongful discharge claim, but such claims are inherently limited to remedying only those discharges in violation of a clear mandate of public policy which otherwise would not be vindicated by a civil remedy. 180. Makovi, 561 A.2d at Moreover, there must be a preexisting, unambiguous, and particularized pronouncement, by constitution, enactment, or prior judicial decision, directing, prohibiting, or protecting the conduct in question so as to make Maryland public policy on that topic not a matter of conjecture or even interpretation. King v. Marriott Int l, Inc., 866 A.2d 895, 903 (Md.Ct.Spec.App. 2005)(citation omitted). The clear mandate requirement ensures that the judiciary does not assume the role of the legislature. Id. Ezeh s wrongful discharge claim arises from her report of Barton s allegedly improper drug use and patient neglect to the Maryland Board of Nursing and FMC s management. 11). According to Ezeh, her statutory and regulatory duty to 12   (Compl. ¶¶ 102- act as a patient advocate and report Barton provides the clear mandate of public policy upon which she relies for her wrongful discharge claim. preliminary (Pl. s Mem. Opp n to Def. s Mot. 19-20). matter, Ezeh s reliance upon Lark is As a misplaced because Lark primarily consists of a statutory interpretation of the WPA. Moreover, the Lark plaintiff relies upon the WPA to provide its clear mandate of public policy and Ezeh does not. Ezeh s reliance upon Insignia, however, and FMC s reliance upon Makovi are more applicable. The court in Makovi clearly held that wrongful discharge actions may not stand when the public policy in question is codified in a statute that provides its own civil remedy. A.2d 179. Insignia clarifies the Makovi rule and 561 supports Ezeh s assertion that when multiple public policies are present, a wrongful discharge action may lie upon the policy that does not have a statutory remedy. Insignia rule does not apply 755 A.2d at 1081, 1087. to Ezeh because she failed The to allege a public policy independent from the one vindicated in the WPA. The COMAR sections cited by Ezeh impose an ethical duty on nurses to act as client advocates, which, according to Ezeh, includes a legal obligation to report improper prescription drug use and patient neglect to management and the Maryland Board of Nursing. The clear mandate of public policy alleged here is, 13   therefore, the ability of a nurse to freely fulfill her legal obligation to report unethical activity without subjection to retaliatory termination by her employer. This policy, and the subsequent civil remedy, is codified in the WPA, which states an employer may not retaliate against an employee simply because the employee [d]iscloses . . . to a supervisor or board an activity, policy, or practice of the employer violation of a law, rule, or regulation . . . . Health Occ. § 1-502(1). that is in Md. Code Ann., Ezeh s reliance upon the public policy in COMAR is unlike Insignia because that plaintiff identified the public policy against prostitution, which was separate and apart from the sexual harassment prohibition codified in Title VII. 755 A.2d at 1080-81, 1086-87. This differs from the Makovi plaintiff who solely identified the public policy against sexual discrimination remedied by Title VII. A.2d at 1084. See Insignia, 755 Similar to the Makovi plaintiff, Ezeh failed to identify a public policy that is not already protected by the WPA. Her wrongful discharge claim must, therefore, dismissed. Accordingly, FMC s Motion is granted as to Count III. 14   be IV. For the foregoing CONCLUSION reasons, the Court will, by separate Order, DENY without prejudice FMC s Motion as to Count II and GRANT FMC s Motion as to Count III. (ECF No. 18). Entered this 8th day of August, 2012 /s/ _____________________________ George L. Russell, III United States District Judge 15  

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.