Barrett v. Bio-Med. Applications of Md., Inc.
| Decision Date | 19 March 2013 |
| Docket Number | Civil Action No. ELH-11-2835 |
| Parties | JUDITH BARRETT, Plaintiff, v. BIO-MEDICAL APPLICATIONS OF MARYLAND, INC., d/b/a FRESENIUS MEDICAL CARE, Defendant. |
| Court | U.S. District Court — District of Maryland |
Judith Barrett, plaintiff, sued her former employer, Bio-Medical Applications of Maryland, Inc., d/b/a Fresenius Medical Care ("FMC"), defendant, alleging violations of federal employment discrimination law.1 Count I alleges discrimination on the basis of disability, in violation of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq. Count II asserts discrimination on the basis of age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. Count III claims discrimination on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. §§ 2000e et seq.2 Count IV presents a claim of unlawful retaliation, also under Title VII.See 42 U.S.C. § 2000e-3.
FMC has filed a pre-discovery "Motion to Dismiss or, In the Alternative, for Summary Judgment" (ECF 27) (together with its supporting memorandum, ECF 27-1, "Motion"), supported by numerous exhibits. The Motion has been fully briefed,3 and the Court now rules pursuant to Local Rule 105.6, as no hearing is necessary. For the reasons that follow, the Motion will be granted. In particular, I will grant summary judgment in favor of defendant as to all counts.
Motion at 2; see also Ex.4 to Motion (ECF 27-5) (FMC job description for "Social Worker").
Born in 1956, plaintiff was 50 years of age at the time she was hired by FMC. See Complaint ¶ 3; see also Ex.C to Complaint at 1 (ECF 1-1 at 13). According to plaintiff, she is disabled within the meaning of the ADA because she is "substantially limited in the major life activity of walking." Complaint ¶ 38. She "has frequently used a cane and has received a handicapped bus card." Id. In the alternative, plaintiff contends that, even if she is not actually disabled, she was "regarded as disabled" by FMC, within the meaning of the ADA, because of the same limitations with respect to walking that are demonstrated by her cane and handicapped bus card. Id. ¶ 49. Moreover, she contends that she was "regarded as disabled" for the additional reason that she has "visible scars on her throat" and uses "false teeth," which are the results of "surgery for cancer," and which allegedly cause her to be regarded as "substantially limited in the major life activity of breathing." Id. ¶ 60.
Defendant notes that plaintiff had around two years of social work experience prior to her employment with FMC, and was licensed by the State of Maryland as a Licensed Graduate Social Worker ("LGSW"). Motion at 2; see also Ex.1 to Motion (ECF 27-2) (plaintiff's résumé). Under Maryland law, an LGSW is authorized to practice social work under the supervision of another social worker who is licensed under one of several other more comprehensive levels of licensure. See Md. Code , § 19-307(c)(2) of the Health Occupations Article ("H.O.").
Initially, plaintiff was assigned work hours of approximately 30 hours per week. Complaint ¶ 5. In November 2006, plaintiff's working hours were increased to 40 hours per week. Id. ¶ 6.
In early 2009, FMC announced that it would "phase-in the position of Financial Coordinator," whose job was "to assist patients with financial arrangements related to their care," a task which was formerly accomplished by social workers. Motion at 2-3. Because of the reduction in social workers' job responsibilities in light of the creation of the new Financial Coordinator position, FMC determined that its social workers could ideally serve 140 patients in a 40-hour work week.
Defendant alleges that, because plaintiff was handling approximately 131 patients at her locations, her hours were reduced to 36 per week. Id. at 3; see also Complaint ¶ 7. However, defendant has submitted unrebutted documentary evidence, drawn from its payroll records, that plaintiff's compensation was not affected by this reduction in her hours, because FMC "fail[ed] to update the payroll system" to account for plaintiff's reduction in assigned hours. Motion at 3; see Ex.7 to Motion (ECF 27-8).
In March 2009, FMC hired Brian Nelson, a 40-year-old man, to fill a vacancy at FMC's Pikesville and Dundalk locations that was created by another social worker's resignation. Motion at 3; Complaint ¶ 8. According to FMC, it advertised this vacancy both internally and externally, and none of its employees, including plaintiff, expressed an interest in the position. Motion at 3. Nelson had approximately eleven years of experience, of which ten were in renal specialty, and was hired to work 40 hours per week. Motion at 4; Complaint ¶ 8. He is licensed as a Licensed Certified Social Worker-Clinical ("LCSW-C"). Therefore, unlike plaintiff, he "does not require any supervision." Motion at 4. See also H.O. § 19-307(c).
In her annual review for the period from March 2008 to March 2009, which was completed in early June 2009, Ms. Barrett received high marks, including ratings of"outstanding" or "exceeds standards" in all areas of assessment. See Ex.N to Complaint (ECF 1-1 at 50-53). Her total score for her 2009 annual review was 930/1000. Id.
Through the summer and fall of 2009, plaintiff complained periodically to FMC management that she was assigned fewer work hours than Mr. Nelson, despite the fact that the two social workers carried equivalent case loads. See, e.g., Ex.14 to Motion (ECF 27-15) (email chain between plaintiff and management in September 2009). These concerns came to a head at a meeting on October 5, 2009, between Ms. Barrett; Carol Miller, FMC's Director of Operations; and Max Nwachinemere, FMC's Operations Manager. See Complaint ¶ 11. Ms. Miller and Mr. Nwachinemere informed plaintiff that, in order to increase her hours, she would need to take on hours at FMC's Rosedale clinic and cease working at the Greater Baltimore location, while continuing to work at the Rotunda location. Plaintiff resisted working at the Rosedale location because she insisted it would result in a longer commute for her by bus. See, e.g., Ex.C to Complaint at 2 (ECF 1-1 at 14).5
At the meeting on October 5, 2009, Ms. Miller and Mr. Nwachinemere also raised with plaintiff several complaints regarding plaintiff that management had received from the Clinical Managers at plaintiff's two locations. See Motion at 4-5; Ex.10 & 11 to Motion (ECF 27-11 & 27-12). According to defendant, FMC's Employee Relations Manager recommended prior to that meeting that plaintiff be placed on a Developmental Action Plan ("DAP"), but plaintiff's placement on the plan was deferred based upon plaintiff's "assurances that her performance would improve." Motion at 5; see Ex.12 to Motion (ECF 27-13).
Although defendant contends that plaintiff "openly worked to frustrate the transition process," Motion at 7; see also Ex.21 to Motion (ECF 27-22), plaintiff agreed to move to the Rosedale clinic (while keeping her hours at the Rotunda clinic). She transitioned to Rosedale in November 2009, and her hours were increased to 38 hours per week. See Complaint ¶ 7.
Nevertheless, on either October 4 or 15, 2009,6 plaintiff filed a complaint with the Maryland Commission on Human Relations ("MCHR")7 alleging retaliation, as well as employment discrimination based upon sex, age, disability, and marital status. Complaint ¶ 10, Exh C. Additionally, plaintiff alleges that she filed three complaints with FMC's Human Resources department, on October 9, 2009, October 12, 2009, and November 2, 2009, respectively. Complaint ¶¶ 13-16. Ms. Barrett claims that she received no response to the substantive issues of her complaints. Id.
Plaintiff was placed on another DAP in April 2010. Motion at 6-7, Exhs 18-21. On April 20, 2010, plaintiff received a score of 490/1000 on her annual performance review, which was significantly lower than her previous year's rating of 930/1000. See Complaint ¶ 26; Ex.N to Complaint (ECF 1-1 at 48-49). Plaintiff's employment was terminated on August 13, 2010.8 Complaint ¶ 32; Motion at 8.
On approximately December 20, 2010, the MCHR issued a finding that indicated that there was no probable cause to believe that defendant had discriminated against plaintiff on the basis of "her sex, age (53), perceived disability and in retaliation for opposing discriminatory activity in the workplace." Complaint ¶ 35; Motion at 8, Exh 6. Plaintiff then requested a review of this decision by the Equal Employment Opportunity Commission ("EEOC"). Complaint ¶ 35, Exh T; Motion at 8, Exh 25. On July 25, 2011, the EEOC issued to plaintiff a Dismissal and Notice of Rights, which authorized plaintiff to file suit. Complaint ¶ 36, Exh U; Motion at 8, Exh 26. She timely initiated this action on October 3, 2011.
Additional facts will be included in the Discussion.
FMC's Motion is styled as a Rule 12(b)(6) motion to dismiss or, alternatively, as a motion for summary judgment under Rule 56. The Motion is supported by copious documentary exhibits that are extrinsic to the Complaint. A motion presented in this...
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