Chen v. Md. Dep't of Health & Mental Hygiene, Civil Action No.: ELH-15-01796

Decision Date14 March 2018
Docket NumberCivil Action No.: ELH-15-01796
CourtU.S. District Court — District of Maryland

YING-JUN CHEN, Plaintiff,

Civil Action No.: ELH-15-01796


March 14, 2018


In this employment discrimination suit, self-represented plaintiff Ying-Jun Chen, who is Chinese-American, filed suit against his former employers, the Maryland Health Care Commission ("MHCC") and the Maryland Department of Health and Mental Hygiene ("MDHMH," "DHMH" or the "Department"),1 as well as several individuals in their official capacities: the former Secretary of MDHMH, Van T. Mitchell; the Acting Executive Director of MHCC, Michael ("Ben") Steffen; and the Director of Administration for MHCC, Bridget Zombro (collectively, the "Individual Defendants"). See ECF 14 ("Amended Complaint").2

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Chen alleges that MHCC terminated his employment as a result of discrimination based on national origin, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), codified, as amended, at 42 U.S.C. §§ 2000e et seq.

Defendants have moved for summary judgment (ECF 48), supported by a memorandum of law (ECF 48-1) (collectively, the "Motion") and many exhibits. See ECF 48-3 through ECF 48-21.3 Chen opposes the Motion (ECF 50, "Opposition") and has also provided multiple exhibits. See ECF 50-1 through ECF 50-19. Defendants replied (ECF 51, "Reply") and submitted two additional exhibits. See ECF 51-1; ECF 51-2.

The Motion is fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion

I. Factual and Procedural Background

Plaintiff was born in China. ECF 14, ¶ 1. He moved to the United States in 1990 to pursue graduate studies (id., ¶ 11) and in 2007 he became a naturalized U.S. citizen. Id. ¶ 13. MDHMH is a principal department of the Maryland state government. ECF 14, ¶ 14. MHCC is an independent commission that functions within MDHMH. Id. ¶ 16. In December 2009,

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MHCC hired Chen as a "Health Policy Analyst—Advanced." ECF 48-4, ¶ 2; see also ECF 50-1 at 2 (letter from the Chief of MHCC Employment Services to Chen, dated December 10, 2009).

As a "Health Policy Analyst—Advanced," Chen was required, inter alia, to conduct "studies on relevant policy issues regarding health care access, utilization and costs using large data files with minimal supervision." ECF 48-5 (plaintiff's Position Description) at 1. Chen acknowledged receipt of his position description. See ECF 50-1 at 7 (Certified Receipt of Position Description). He satisfactorily completed the 180-day probationary period on June 16, 2010. ECF 50-2 at 2-3. However, Chen was terminated on January 18, 2012. See ECF 52-1 (Notice of Termination). At that time, he was still classified as Health Policy Analyst—Advanced. See ECF 52-1 at 2.

During plaintiff's employment, Mitchell was Secretary of MDHMH. ECF 14, ¶ 15. He resigned in December 2016, and was succeeded by Robert R. Neall.4 Steffen was the Acting Executive Director of the MHCC, and the Director of MHCC's Center for Analysis and Information Services. ECF 14, ¶ 17; see also ECF 52-3 at 3-14 (documents attached to plaintiff's Notice of Disciplinary Action, dated November 9, 2011). Zombro is the Director of Administration for MHCC. ECF 48-4 (Zombro Affidavit), ¶ 1; see also ECF 52-2 (Memorandum from Zombro to Chen, dated December 7, 2010) at 3.5 According to Chen, Zombro reports to Steffen. ECF 14, ¶ 18.

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While at MHCC, plaintiff had several supervisors, some of whom overlapped. Linda Bartnyska, the Chief of Costs and Quality for MHCC (ECF 52-3 at 10, ¶ 2), was Chen's "immediate supervisor." ECF 14, ¶ 43. Bartnyska supervised plaintiff from at least December 2009 to July 2011. See ECF 48-7 (Mid-Cycle PEP Evaluation, dated December 2010); ECF 48-8 (End-of-Cycle PEP Evaluation, dated July 2011); see also ECF 48-5 at 1; ECF 52-3 at 10 (memorandum from Zombro to Chen, dated November 3, 2011). It is not clear when, if at any point before Chen's termination, Bartnyska ceased supervising plaintiff.

Norman Ringel began to supervise Chen in January 2011, when Chen was moved from the position of Health Policy Analyst—Advanced to the position of Data Processing Programmer. See ECF 48-8 at 5 (unsigned and undated document attached to plaintiff's 2011 End-Of-Cycle PEP Evaluation); see also ECF 52-3 at 10.6 It appears that Ringel ceased supervising plaintiff in June 2011, when Ringel retired from MHCC. See ECF 50-13 at 3 (email from Chen to Steffen, dated December 26, 2011).

Leslie LaBrecque is the Chief of Database Development and Applications for the MHCC. See ECF 52-3 at 7 (email from LaBrecque to Steffen, dated November 3, 2011). At some point in 2011, LaBrecque also began supervising plaintiff as to his "programming" assignments. ECF 14, ¶ 59; ECF 52-3 at 7.

On September 21, 2010, Zombro wrote a "Memorandum of Verbal Counseling" to Chen, with copies to Steffen and Bartnyska. See ECF 48-19 at 1 (Memorandum of Verbal Counseling). The subject line of the memorandum is: "Insubordination." Id. In the body of the memorandum, Zombro asserted that Chen had been given an assignment at "the beginning of the year," which

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was due on September 17, 2010, but he failed to complete the assignment by the deadline. Id. Additionally, Zombro wrote that, "without authorization from Linda Bartnyska or Ben Steffen," plaintiff "tried to convince Norm Ringel to create" the assignment, offering Ringel "comp-time" and the possibility of "part-time work . . . when he retires, neither of which are things [Chen is] in a position to offer." Id. Further, Zombro stated that, when Bartnyska told plaintiff that the assignment was due, plaintiff said "then [Bartnyska] should do it" herself. Id.

Two emails were attached to the Memorandum of Verbal Counseling. See ECF 48-19 at 1-3. In an email from LaBrecque to Steffen, Bartnyska, Ringel, and Zombro, dated September 17, 2010 (ECF 48-19 at 2), LaBrecque reported that Chen had placed MHCC data on a USB drive,7 in violation of MHCC data policy. Id. According to LaBrecque, Chen also inserted the USB drive into LaBrecque's computer, causing the computer to crash. Id. In an email of that same date from Ringel to Zombro and Steffen (ECF 48-19 at 3), Ringel reported that Chen "impulsively" connected a USB drive to Ringel's computer. According to Ringel, Chen said that "he has numerous [USB] drives on which to back up his files."

On December 2, 2010, Chen and Bartnyska had a verbal altercation that resulted in a five-day suspension of Chen, from December 8, 2010, through December 15, 2010. See ECF 52-2 at 3. According to a memorandum from Bartnyska to Zombro, dated December 2, 2010 (ECF 52-2 at 4-5), when Bartnyska assigned Chen a project on that same date, Chen raised his voice, leaned across the table towards Bartnyska, and put his face close to hers. ECF 52-2 at 4.

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Defendants have submitted statements of several MHCC employees who claim to have witnessed the incident and who corroborate Bartnyska's account. See ECF 52-2 at 6-9.8

Chen appealed the suspension to Rex Cowdry, then the Executive Director of MHCC. See ECF 50-4 at 3-4 (appeal). Chen claimed that he "remained silent when [Bartnyska] started yelling at" him. Id. at 3. Moreover, Chen insisted that he "did not yell" at Bartnyska. Id. And, in response to Bartnyska's assertion that Chen had leaned across a table towards her, Chen explained that he "bowed down" to her. Id.9 Further, Chen stated that he "had endured [Bartnyska] yelling at least three (3) times." Id. And, he asserted that he and Zombro had discussed improving his "2-way communications on future work assignments" to "avoid misunderstandings" with Bartnyska. Id.

Cowdry denied the appeal. ECF 50-4 at 2. He concluded that plaintiff failed to present evidence of mitigating circumstances regarding the verbal altercation of December 2, 2010. Id.10

The MHCC evaluates its employees using the Maryland Performance Planning and Evaluation Program ("PEP"). See ECF 48-1 at 4; see also 48-6 (revised PEP Guidelines and Instructions, dated October 14, 2010). "The PEP is intended to facilitate communication between employees and supervisors regarding expectations and performance." ECF 48-6 at 1. It

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"offers employees and supervisors an opportunity to . . . openly discuss areas for [the employee's] enhancement and improvement. In cases of poor performance it is meant to compliment the disciplinary process by providing a means to assist employees to improve." Id.

The PEP process requires an employee to be evaluated by a supervisor at least twice each year, typically in June and December. See ECF 48-6 at 1; see also ECF 48-1 at 4. PEP evaluations fall into three categories. A "beginning-of-cycle" PEP evaluation, which occurs soon after an employee is hired, requires, inter alia, a discussion about "performance expectations for the coming year." Id. A "mid-cycle" PEP pertains to "the employee's performance during the first months of the PEP Cycle," and typically occurs in December. Id. An "end-of-cycle" evaluation entails a review of "the employee's performance for the entire rating year," and generally occurs in June. Id.

Under the PEP framework, an employee is evaluated based on job requirements termed "position-specific performance standards" and "behavioral elements." ECF 48-6 at 2. An employee's supervisor rates the employee on a scale of 1 to 3 for each position-specific performance standard and behavioral element, with 3 being the best. See, e.g., ECF 48-9 (Chen's Decembers 2011 PEP); see also ECF 48-6 at 2. The ratings on each "standard" and "element" are then averaged. The average score determines whether the employee receives an overall evaluation of "Outstanding," "Satisfactory," or "Unsatisfactory." ECF 48-6 at 2 (capitals in original); see also ECF 48-9. To obtain an overall rating of "Outstanding," the employee must receive an average score within the range of...

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