Marley v. Kaiser Permanente Found. Health Plan
| Decision Date | 11 March 2021 |
| Docket Number | Case No.: 17-cv-1902-PWG |
| Parties | ROBERTO MARLEY, Plaintiff, v. KAISER PERMANENTE FOUNDATION HEALTH PLAN, Defendants. |
| Court | U.S. District Court — District of Maryland |
Plaintiff Roberto Marley, a Maryland resident, has brought this suit against his former employer, Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. ("Kaiser"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. He has also brought a state law claim for wrongful termination. On November 16, 2015 Kaiser terminated Marley's employment after placing him on performance improvement plans and issuing multiple written warnings. Marley claims that his termination was wrongful and violated public policy because, he alleges, it resulted from his filing a worker's compensation claim. Marley also alleges supervisors at Kaiser retaliated against him when he complained to Kaiser's internal human resources office and the Equal Employment Opportunity Commission ("EEOC") after his direct supervisor, Tony Richardson, mocked Marley's national origin and apparent sexual orientation. As to the FMLA claim, Marley alleges Kaiser retaliated against him because he took medical leave for emotional distress and again after a workplace accident.
Pending Kaiser's motion for summary judgement. ECF No. 55. The parties fully briefed the motion (ECF Nos. 55, 60, 63), and a hearing is not necessary. See Loc. R. 105.6 (D. Md. 2018). Because I find that no reasonable juror could find for Marley on any of his claims, Kaiser's motion is GRANTED, and summary judgment will be granted in favor of Kaiser with respect to each count and the clerk of court will be directed to close this case.
Marley began working for Kaiser in May of 2011. Third Am. Compl. ("Compl.")1 ¶ 6, ECF No. 34. He received a series of awards for his performance from May 2012 through July 2014 and was one of the company's top performers. Id. ¶ 7. Marley transferred to the role of benefits specialist in August of 2014, received a pay raise, and came under the supervision of Tony Richardson, who was in turn under Sheila Blackman's supervision. Id. ¶ 8. The new job soon took a turn for the worse for Marley: shortly after the transfer, Richardson reprimanded Marley for being a foreigner and a non-citizen of the United States. Id. ¶ 9. Richardson criticized Marley's language and writing abilities, and taunted him for his apparent sexuality, observing that Marley lacked a supposed "macho factor." Id. ¶ 11. Richardson made a series of other disparaging remarks to Marley, including a comment that Richardson "loved it" when Marley wore "tight pants," that Marley was "too soft," and that Marley needed to take his lunch breaks like a man because only pregnant women require lunch breaks. Id. ¶¶ 14, 15, 17. Richardson also physically assaulted Marley on multiple occasions, slapping his hand on Marley's buttocks in September of 2014 and pushing Marley in the chest approximately one month later. Id. ¶¶ 12, 16.
Marley took exception to Richardson's conduct and, in November of 2014, confronted Richardson and informed Richardson of his intent to report the harassment and discriminatory conduct. Id. ¶ 19. Richardson placed Marley on a Performance Improvement Plan ("PIP") after the confrontation. Id. Marley responded by contacting Kaiser's "EEO office" in December; he subsequently applied for a promotion and was rebuffed by Richardson for having "a big mouth." Blackman also told Marley not to apply due to his placement on a PIP. Id. ¶ 24. Marley then contacted the EEOC, filing an intake form in December of 2014 in which he alleged Richardson discriminated against him on the basis race and national origin. Id. ¶ 25; Ex. 1 to Second Am. Compl. at 3, 6, ECF No. 18-1 (EEOC Intake Questionnaire).
In addition to the EEOC intake questionnaire, a Charge of Discrimination ("Charge") was drafted against Kaiser on Marley's behalf, which alleged Title VII discrimination based on Sex, National Origin, and Retaliation for events spanning September 2014 through January 2015. Ex. 1 to Second Am. Compl. at 2. The allegations in the Charge mirrored those in Marley's EEOC questionnaire. In February of 2015, Richardson informed Marley that he intended to issue another PIP and told Marley that he should resign for (again) opening his big mouth. Compl. ¶ 28. Marley attempted to distance himself from Richardson afterwards. Id. In May of 2015, Marley complained about the lack of an investigation into his allegations against Richardson, whose conduct had caused Marley to use paid time off and FMLA time to pursue treatment for the mental stress he claimed he suffered while working at Kaiser. Id. ¶¶ 30-31. Marley requested an additional two months of FMLA leave in May, 2015 which, he states, was necessary to recuperate from Richardson's harassment. Id. ¶ 31.
The internal investigation of Marley's EEO allegations concluded on August 7, 2015 when Blackman summoned Marley to her office, where she informed him that human resourcescompleted the investigation. Id. ¶ 32. Blackman also informed Marley that she heard a rumor he planned to sue Kaiser and, later that day, said she would "keep track" of his performance. Id.
On August 10, 2015, Marley suffered a head injury at work; his physicians recommended he take off the next three months and undergo cognitive therapy due to the severity of his injury. Id. ¶¶ 33, 34. Marley alleges that his supervisor discouraged him from seeking workers compensation benefits, telling him that he "should not have involved an attorney" and that "they could have taken care of it ourselves." Id. ¶ 35. Marley was in and out of work that month but received another PIP on August 17, 2015 and, two days later, a written warning. Id. ¶ 36-38.
In September and October, Marley began a reduced workload of 32 hours per week; in October, he received certification of a serious health condition from his health care provider and commenced FMLA leave. Id. ¶¶ 42, 43. On October 16th, Marley received a second written warning; a final warning followed on November 2nd and Marley was fired on November 16, 2015. Id. ¶¶ 44-46.
This case has a lengthy procedural history. It was filed on May 2, 2017 via a pro se complaint in Montgomery County Circuit Court. ECF No. 2. Marley soon retained counsel, who then amended the complaint on June 29, 2017, ECF No. 4, and Kaiser removed the case to this Court on July 12, 2017, ECF No. 1. The case was assigned to Judge Hazel and Kaiser immediately filed a motion to dismiss; Marely subsequently filed a second amended complaint and Kaiser re-raised its motion to dismiss. While Kaiser's motion was pending, Marley moved for leave to file a third amended complaint, which Kaiser opposed. Judge Hazel held a motions hearing on February 2, 2018 where he considered both Kaiser's motion to dismiss and Marley's motion for leave to file a third amended complaint. On September 20, 2018, Judge Hazel issued a memorandum opinion in which he granted in part and denied in part both motions. Mem. Op.Sept. 20, 2017, ECF No. 32. As to Kaiser's motion to dismiss, Judge Hazel dismissed Marley's hostile work environment claim, limited the Title VII retaliation claim to the issues of Marley's PIP and his receiving threats of termination, and allowed both the FMLA retaliation and Wrongful Discharge claims to proceed. Id. 16. Judge Hazel ordered that the Third Amended Complaint, ECF No. 34, would be the operative complaint.
On October 22, 2018, the Clerk's office reassigned the case to me. Marley again sought to amend, and I denied Marley's motion. ECF No. 41. The parties proceeded to discovery and, at the close of discovery, Kaiser noted its intent to file a motion for summary judgment. ECF No. 52. I held a pre-motion telephone conference on October 10, 2019 and the parties proceeded to brief the motion.
Summary judgment is proper when the moving party demonstrates, through "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials," that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c)(1)(A); see Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 n.10 (1986). The existence of only a "scintilla of evidence" is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id.
A claim for wrongful termination under Maryland law requires that a plaintiff prove (1) the employer terminated his or her employment, (2) "the basis for the employee's discharge . . . violate[d] some clear mandate of public policy," and (3) there was "a nexus between the employee's conduct and the employer's decision to fire the employee." Wholey v. Sears Roebuck, 803 A.2d 482, 489 (Md. 2002); see Watson v. ADT, LLC, No. PX-18-48, 2018 WL 3122456, at *2 (D. Md. June 26, 2018) (citing Wholey). "Terminations in violation of public policy are narrowly circumscribed and 'limited to situations where the employee has been terminated for exercising a specific legal right or duty or where the employee has been fired for refusing to violate the law or the legal rights of a...
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