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

• Decision Date: 28 February 2019
• Docket Number: Civil Action No. ELH-18-1701
• Parties: TAIWO OKUSAMI, M.D., Plaintiff, v. MARYLAND DEPARTMENT OF HEALTH AND MENTAL HYGIENE, Defendant.
• Court: U.S. District Court — District of Maryland

TAIWO OKUSAMI, M.D., Plaintiff, v. MARYLAND DEPARTMENT OF HEALTH AND MENTAL HYGIENE, Defendant.

Civil Action No. ELH-18-1701

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

February 28, 2019

MEMORANDUM OPINION

In this employment discrimination case, plaintiff Taiwo Okusami, M.D., an African-American psychiatrist, has sued his former employer, the Maryland Department of Health and Mental Hygiene, Thomas B. Finan Center (the "Department" or "DHMH").¹ ECF 1 (the "Complaint"). He asserts three claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"): discrimination on the basis of race (Count I); harassment and hostile work environment (Count II); and retaliation (Count III). ECF 1, ¶¶ 21-37.² In addition, in Count IV, he asserts a claim for wrongful discharge under Maryland law. Id. ¶¶ 38-41. Plaintiff seeks attorney's fees, costs, and monetary relief, including back pay and front pay. See id.

The Department has moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6), for lack of subject matter jurisdiction under the Eleventh Amendment, and for failure to state a claim. The motion is supported by a memorandum of law (ECF 9-1) (collectively, the "Motion") and two exhibits. ECF 9-2 - ECF 9-3.³ In particular, the Department contends that dismissal of Count IV is warranted, because the Eleventh Amendment bars plaintiff's wrongful termination claim in federal court. ECF 9-1 at 6-8. In addition, it asserts that the remaining claims (Counts I, II, and III) fail to state a claim. Id. at 8-17. Alternatively, the Department argues that the parties executed a "Personal Services Contract" (ECF 9-2, the "Contract"), by which the "parties agreed that Maryland's State courts, and not federal court, have exclusive jurisdiction to hear Dr. Okusami's claims arising related [sic] to his employment with the State of Maryland." Id. at 17.

Plaintiff has filed an opposition to the Motion (ECF 12), supported by a memorandum of law (ECF 12-1) (the "Opposition") and several exhibits. ECF 12-3 - ECF 12-6. Defendant has replied. ECF 13 (the "Reply").

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion (ECF 9) as to Counts II, III, and IV. But, I shall deny the Motion as to Count I.

I. Factual Background⁴

The Department "is a state agency that regulates health care providers, facilities, and organizations, and manages direct services to patients where appropriate. ECF 1, ¶ 2. It "has four major divisions - Public Health Services, Behavioral Health, Developmental Disabilities, andHealth Care Financing." Id. Also, the Department "has 20 boards that license and regulate health care professionals[,] various commissions that issue grants, and research and make recommendations on issues that affect Maryland's health care delivery system." Id.

The Thomas B. Finan Center (the "Center") is "a multi-purpose psychiatric facility operating 88 beds" and "a primary inpatient component" of the Department. Id. The Center admits patients pursuant to a commitment order after a finding in criminal court that the defendant is either not competent to stand trial or is found not criminally responsible for the crimes committed. See Md. Code (2015 Repl. Vol., 2018 Supp.), §§ 10-701 et seq. of the Health-General Article ("H.G.").

Maryland law tasks the Center with preparing "a written plan of treatment" for individuals at the Center, commonly referred to as an Individual Treatment Plan ("ITP"). H.G. § 10-706(a)(1). The ITP "is a comprehensive and thoughtfully written plan based on an initial diagnostic impression and an overall evaluation of the patient's specific needs and problems." Code of Maryland Regulations ("COMAR") 10.21.03.03A (defining the content and nature of ITPs). Of relevance here, the ITP is "developed by members of the mental health professional treatment team who are directly involved in the patient's care." COMAR 10.21.03.03B.

Dr. Okusami has extensive experience in the field of psychiatry, and is licensed in both Maryland and Virginia. ECF 1, ¶ 1. At the relevant time, he held certifications in General Psychiatry and Child/Adolescent Psychiatry from the American Board of Psychiatry and Neurology. Id.

From April 2011 through November 1, 2016, plaintiff was employed by the Department as a Staff Psychiatrist at the Center. Id.; ECF 10-4 ("Department Statement Position") at 6. As a "Staff Psychiatrist," plaintiff's duties included "evaluating and treating patients with variousmental illnesses." Id. "His contract was reviewed for renewal on an annual basis." ECF 10-4 at 6.

On or about July 1, 2016, the parties entered into a Personal Services Contract with the Department, for the period of July 1, 2016, through June 30, 2017. ECF 1, ¶ 1; ECF 9-2. Although plaintiff was "a contractual employee," pursuant to Md. Code (2015 Repl. Vol., 2018 Supp.) §§ 13-101 et seq. of the State Personnel and Pensions Article ("S.P.P."), the Contract "establishe[d] an employer-employee relationship" between the Center and Dr. Okusami. ECF 9-2 at 1. The Contract provided, among other things, that Dr. Okusami "was to be paid $120.00 per hour" based on "a regular workweek consisting of 40 hours." ECF 1, ¶ 9; ECF 9-2 at 1. The total amount of compensation for the term "was not to exceed $249,600.00." Id.

At the Center, "Dr. Okusami was responsible for the operations of a facility," called Cottage 1. Id. ¶ 8. The facility "provided short-term housing for its residents with twenty-two beds and [was] staffed with a nursing assistant, psychologists, and [a] social worker, all of whom reported to Dr. Okusami." Id. His duties "included, in part, performing mental health evaluations of mentally ill patients accused of crimes to make a determination of their mental state and fitness to attend trial." Id.

Until July 8, 2016, Dr. Okusami was supervised by Dr. David Millis, who was then the Medical Director of the Center. ECF 1, ¶ 9. Dr. Millis resigned as of July 8, 2016. Id. Thereafter, from July 9, 2016, until November 1, 2016, John Cullen, the Chief Executive Officer of the Center, served as plaintiff's supervisor. Id.

Dr. Okusami claims that in 2015 he "began to be harassed" by Dr. Millis and Cullen, both of whom are Caucasian. Id. ¶ 10. "Specifically, in March 2015, Dr. Okusami was subpoenaed to testify at trial regarding his findings from examining a patient." Id. However, he "was notcompensated" for the time he spent at the trial, even though two of his Caucasian coworkers, Mary Lou Perkins and Janet Hendershot, were compensated for such time. Id.⁵

Perkins, an LCSW and forensic coordinator, and Hendershot, the Forensic Psychology Chief, "were both permanent, state government employees." Id. However, similar to plaintiff, they "interacted with and treated patients" at the Center "for competency and criminal responsibility evaluations"; they were members of the Center's "forensic evaluation team"; and they testified "on behalf of the patients that [sic] were under their care and treatment." Id. Over the course of Dr. Okusami's employment at the Center, he "testified on more than ten (10) separate occasions on behalf of various patients regarding the methods, findings, and conclusions in forensic reports prepared by [] Hendershot." Id.

On several occasions between March and August 2015, Cullen and Dr. Millis purportedly "ordered Dr. Okusami to stop performing and documenting his examinations with thoroughness and candor because his medical opinions tended to frequently conflict with the medical opinions of the forensic evaluators." Id. ¶ 11. In plaintiff's words, "Cullen and Dr. Millis expressed a preference to prescribe patients medication which Dr. Okusami only viewed as an option of medical necessity if the circumstances warranted prescription medications given the . . . propensity for addiction to psychotropic drugs." Id.

Dr. Okusami sent correspondence to Cullen and Dr. Millis on August 12, 2015, stating id. ¶ 12 (alterations in original):

Dear Gentlemen:

I have been called to 2 meetings with you regarding my role as a psychiatrist. At both meetings, the last was on 8/11/15, you again informed me that DHMH's policy has restriction on my role as a psychiatrist: specifically that I cannot evaluate apatient's cognitive state in regards to the alleged crime they are charged with AND I cannot document my professional opinion with regards to my findings. At both meetings you threatened to terminate my employment if I did not comply.

As I understand the duties of a Physician/Psychiatrist as licensed by the Board of Medicine, as regulated by the AMA and the APA, there is no restriction to a Psychiatrist's duty to evaluate a patient and that evaluation includes taking all elements of stressors (and legal issues are stressors) that may affect the patient's mental wellbeing or illness.

I am also required by law to keep an accurate record of my treatment recommendations for each patient I evaluate.

Please provide me the DHMH policy that limits my function as a Psychiatrist so I understand the rational [sic].

These issues arose because in the course of my evaluating patients I have documented my opinions which apparently did not conform to the conclusion of the Forensic evaluators.

As I under [sic] the responsibility of Forensic evaluation, the evaluator reviews all available medical records on the patient, interviews the patient and then write [sic] an opinion on whatever question the Court was asking. The evaluator's responsibility is to make a coherent, factual report. The evaluator is not bound by any opinion I, as an Attending, may have written about the patient being evaluated.

I do not believe that I because I am a State employee requires me to give up medical responsibilities under the law; to do so will be a violation of the Hippocratic oath: to do no harm. To withhold a reasoned psychiatric opinion on a patient I have duly evaluated will

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