Chen v. Md. Dep't of Health & Mental Hygiene

• Decision Date: 17 February 2016
• Docket Number: Civil Action No.: ELH-15-01796
• Parties: YING-JUN CHEN, Plaintiff, v. MARYLAND DEPARTMENT OF HEALTH AND MENTAL HYGIENE ET AL., Defendants.
• Court: U.S. District Court — District of Maryland

YING-JUN CHEN, Plaintiff, v. MARYLAND DEPARTMENT OF HEALTH ANDMENTAL HYGIENE ET AL., Defendants.

Civil Action No.: ELH-15-01796

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

February 17, 2016

MEMORANDUM OPINION

Ying-Jun Chen, who is self-represented, filed suit against his former employers, the Maryland Health Care Commission ("MHCC") and the Maryland Department of Health and Mental Hygiene ("MDHMH" or "DHMH"), alleging harassment and discrimination based on national origin, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"); the Fourteenth Amendment to the United States Constitution; and Article 26 of the Maryland Declaration of Rights. ECF 1. The Complaint also names as defendants the Secretary of MDHMH, Van T. Mitchell; the Acting Director of MHCC, Michael Steffen; and an MHCC administrator, Bridget Zombro (the "individual defendants"). ECF 1.¹ Id. Plaintiff appended thirty-one exhibits to his Complaint. ECF 1-2 through ECF 1-33.

MDHMH is a principal department of the Maryland state government. ECF 1 ¶ 5. MHCC is an independent commission that functions within MDHMH. Id. ¶ 7. Plaintiff, anaturalized United States citizen who was born in China (id. ¶ 13), worked for MHCC from 2009 until his termination in 2012. ECF 1-33 at 2 (Letter from U.S. Equal Employment Opportunity Commission dated Mar. 31, 2015). He alleges that he suffered "discrimination on national origin (Chinese) and harassment with regard to discharge" (ECF 1 at 1), which I construe as claims for wrongful termination and hostile work environment.² Plaintiff also challenges the procedure by which his employer disciplined and ultimately terminated him. Id. ¶¶ 83-88. He seeks "rescission of his discharge and restoration to his position of employment with full back pay and to have his suspensions expunged from his record . . . ." Id. at 2.

Defendants have moved to dismiss (ECF 6), pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), accompanied by a memorandum of law (ECF 6-1) (collectively, the "Motion"). Chen opposes the Motion (ECF 10, "Opposition"), and submitted three exhibits (ECF 10-1 through ECF 10-3) to support his position. Defendants have replied. ECF 11, "Reply."

The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will grant the Motion, with leave to amend the Title VII claim.

I. Factual and Procedural Background³

As noted, plaintiff was born in China. ECF 1 ¶¶ 4, 13. It appears that Chen immigrated to the United States after earning his undergraduate degree in China. See ECF 1-5 at 3, Resume. He maintains that, "[a]s a result of his national origin, he has a noticeable accent." ECF 1 ¶ 13. From December 9, 2009, until Chen's termination on January 18, 2012, Chen worked for MHCCas a "Health Policy Analyst Advanced." ECF 1-33 at 2. MHCC is "an independent regulatory agency" within MDHMH "whose mission is to plan for health system needs, promote informed decision-making, increase accountability, and improve access in a rapidly changing health care environment by providing timely and accurate information on availability, cost, and quality of services to policy makers, purchasers, providers and the public." Welcome to the Maryland Health Care Commission, Department of Health and Mental Hygiene (Feb. 2, 2016), http://mhcc.maryland.gov/.

As a Health Policy Analyst, Chen was responsible for conducting "health services (payments and utilization) analysis and special studies for the Division of Cost and Quality Analysis within [MHCC's] Center for Information Services and Analysis." ECF 1-2 at 3, Position Description. Chen maintains that he received satisfactory performance evaluations during March 2010 and June 2010. ECF 1 ¶¶ 14-15 (citing ECF 1-3; ECF 1-4). According to Chen, before December 2010, he "had never been subject to any disciplinary action by Defendants, or any of his former employers." ECF 1 ¶ 16 (citing ECF 1-5).

Plaintiff alleges that on December 2, 2010, "amidst intense work" on a biennial report, "a project supervisor walked by Plaintiff's cubicle and displayed a mid-temper [sic] tantrum at Plaintiff for being unresponsive" to an email that she had sent to plaintiff. Id. ¶ 17. Chen maintains that he "remained calm." Id. After Chen responded to the email he "walked over to [the supervisor's] office explaining that he had missed her incoming email earlier while focused on related work on hand, and took a bow expressing his regret about the delay." Id.

The following day, December 3, 2010, "an office observer" complained about Chen's behavior and he "was charged with threat in speaking to a supervisor." Id. ¶ 18. On December7, 2010, Zombro suspended Chen for five days, without pay. Id. ¶ 19. Zombro's "Memorandum" to Chen, dated December 7, 2010, states, in relevant part, ECF 1-6 at 3:

On Friday, December 3, 2010, I gave you the opportunity to explain your side of the incident that occurred on December 2, 2010 between you and your Supervisor, Linda Bartnyska. The incident began as a conversation between the two of you regarding your work assignment and it escalated with you yelling at her in your cubical, following her to her office to continue the conversation, where you once again, raised your voice and leaned over her conference table in a manner that was intimidating. Not only was this behavior unprofessional it was disruptive to many of you [sic] co-workers who were subjected to your out burst [sic]. On December 7, 2010 Mitigation was held.

I gave you the opportunity to give your version of the incident and you admit in your write-up that you in fact did raise your voice. We have met previously regarding your inappropriate behavior in communicating with your supervisor. Inappropriate behavior in the work place is a serious issue and will not be tolerated.

Should behavior such as this continue, you will be subject to progressive discipline that could result in termination.

Chen appears to dispute Zombro's characterization of his conduct on December 2, 2010. He asserts, ECF 1 ¶ 20: "Given Plaintiff's ethnic traits of his national origin, a bodily bow is generally used as a way of expressing respect/gratitude or regret."

On December 21, 2010, plaintiff's supervisors rated his performance as "Satisfactory" in a "Mid-Cycle PEP⁴ Evaluation." Id. ¶ 22 (citing ECF 1-7). However, on June 23, 2011, plaintiff received an "End-of-Year Appraisal with an unsatisfactory overall rating." ECF 1 ¶ 24.

The Code of Maryland Regulations ("COMAR"), which governs performance appraisals for state employees, provides, in relevant part, 17.04.05.03(G)(1):

When an employee has been given an overall rating of "unsatisfactory" on an annual performance appraisal, the employee's supervisor shall inform theemployee that the employee has 180 days from issuance of the rating to improve to the level of "satisfactory". Approximately midway through the 180-day period, the employee and the employee's supervisor shall meet to evaluate the employee's progress toward a satisfactory rating. Failure to meet standards at the end of the 180-day period shall result in the employee's termination.

See ECF 1-18 at 2, Notice of Termination dated Jan. 11, 2012.

On June 30, 2011, Zombro and another supervisor, Norman Ringel, issued a "Performance Improvement Plan" ("PIP") to plaintiff, dated June 23, 2011. ECF 1-18 at 3, Notice of Termination; see ECF 1-9, PIP. The PIP identified plaintiff's performance in the following areas as "Needs Work (Unsatisfactory)": "Working independently"; "Self checking results"; "Ability to understand and use statistical formulas"; "Ability to accurately/clearly explain analytical results in written text"; "Demonstrates an increasing knowledge of the MCDB,⁵ expertise in its use"; "Prepares at least one technical analysis using the MCDB"; "Reports progress, resolves questions needing decision with supervisor"; "Provides data analysis, text development, and document reviews for the health insurance coverage report"; "Prepares at least one technical analysis using the MCDB or other data in accordance with the approved study and design and timeline." ECF 1-9 at 2.

The PIP also stated, id. at 3: "This plan will be reviewed monthly, as necessary, to work with Linda/Leslie on areas of difficulty and to note areas of strength. This plan, and any amendments, will be considered for the mid-cycle PEP, to take place on or before December 31^st, 2011. The performance under the plan will be reevaluated in 180 days starting July 1, 2011." A "Special Note" at the end of the PIP stated, in relevant part, id.: "Mr. Chen was rated as satisfactory during his mid-term evaluation; it was due to the implement of a new performanceevaluation system. Instruction from DBM⁶ were that all employees were to be rated Satisfactory."

Chen maintains that on or about October 27, 2011, his supervisors "falsely accused" him of "using 'a modem and a data plan' (a personal smart phone) to access the Internet at work . . . ." ECF 1 ¶ 25. He asserts that no device was found "in his use or possession" and that he had no data plan subscription. Id. According to plaintiff, the following day, his supervisors "abruptly removed" his "desktop access to [the] Internet," "without notice." Id. ¶ 26. Chen acknowledges that he took an "extended lunch break" on October 28, 2011. ECF 1-11 at 2.

On the morning of November 2, 2011, Chen sent an email to Bartnyska, with a copy to Steffen and to Chen's immediate supervisor, Leslie LaBrecque.⁷ ECF 1-13 at 8. It said, in large-point font, id. (bold in original): "Please restore my intra/internet connections!" On November 2, 2011, Chen met with Zombro and an unnamed supervisor. ECF 1 ¶ 27. According to Chen, Zombro "asserted that the access removal was made in June 2011 due to the poor overall rating of Plaintiff's PEP Evaluation." Id. Chen submits that Zombro's explanation was "erroneous" as he (Chen) had had...