Romeo v. APS Healthcare Bethesda, Inc.

• Decision Date: 17 May 2012
• Docket Number: Civil No. WDQ–11–2208.
• Citation: 876 F.Supp.2d 577
• Parties: Nadley ROMEO, Plaintiff, v. APS HEALTHCARE BETHESDA, INC., Defendant.
• Court: U.S. District Court — District of Maryland

876 F.Supp.2d 577

Nadley ROMEO, Plaintiff,

v.APS HEALTHCARE BETHESDA, INC., Defendant.

Civil No. WDQ–11–2208.

United States District Court,

D. Maryland,

Northern Division.

May 17, 2012.

Karl-Henri Gauvin, The Gauvin Law Firm, Baltimore, MD, for Plaintiff.

Ariana Wright Arnold, Jackson Lewis LLP, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

WILLIAM D. QUARLES, JR., District Judge.

Nadley Romeo sued APS Healthcare Bethesda, Inc. (“APS”) for employment discrimination, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).¹ For the following reasons, the Court will grant APS's motion to dismiss and for summary judgment.

I. Background ²

APS is a health care management company whose clients include Medicaid programs, health plans, and state and local governments. ECF No. 11, Ex. 5 at 6. Romeo is an African American woman. Am. Compl. ¶ 3. On October 15, 2007, APS hired Romeo as an accounts receivable revenue supervisor at an annual salary of $55,000.³

On February 29, 2008, a performance evaluation found that Romeo was “meet[ing] expectations.” ECF No. 13, Ex. B. Her supervisor, Bernard Wrisk, said that Romeo was “competent” at managing her workload, timely completing projects, and building customer confidence, and “above average” at working with others. Id. at 2–5. Her overall performance was rated 3 out of 5. Id. at 6.

On March 10, 2008, Romeo's job title was changed to Accountant III. ECF No. 13, Ex. C. Her salary remained the same.⁴ On April 3, 2008, Brian Cuomo became Romeo's supervisor. ECF No. 13 at 2; ECF No. 11, Ex. 8. On April 29, 2008, APS hired Jason Bishop, a white man, as Accountant III at an annual salary of $65,000.⁵

On July 22, 2008, Romeo's mid-year performance evaluation said that she was “meet[ing] expectations” but “need[ed] improvement” in communication, “look [ing] for, recommend[ing], and act[ing] on opportunities to improve business results,” and “solv[ing] problems creatively.” ECF No. 13, Ex. E at 3–4, 6. Cuomo rated Romeo “competent” at decision making, prioritizing, “meet[ing] commitments,” and working independently. Id. at 2–4 He said that he expected “more intuitive decision making,” “a greater understanding of what is being billed, recognized, and unearned,” “a partnership with fellow associates and not the blame game,” “more time planning and organizing ... thoughts before ... present[ing] them to others,” and “more initiative in solving problems on her own.” Id. at 2–4. He noted that Romeo “perform[ed] well under normal circumstances but ha[d] some difficulty handling new developments without assistance.” Id. at 4. Cuomo said that he wanted Romeo to “complete [the] reconciliation/overhaul” of certain accounts “to identify the true account numbers involved” and “prevent discrepancies from occurring again.” Id. at 1. Romeo's overall performance was rated 3 out of 5. Id. at 6.

In late 2008 or early 2009, Cuomo evaluated Romeo's performance again and determined that she was “meet[ing] expectations, was “competent” at decision making, prioritizing, taking initiative, and communication, and was “above average” in dependability. ECF No. 13, Ex. F at 4–6. Cuomo noted that Romeo “continue[d] to bill both accurately and timely,” “deal[t] with problems and opportunities as they ar[o]se,” and was “respectful and attentive.” Id. at 2–5. He said that he expected Romeo to “take a more active role in understanding the components making up public contracts,” “maintain[ing] spreadsheets analyzing trends,” and “understanding revenue and month over month variances.” Id. at 3–5. He said that he wanted Romeo to continue the “reconciliation/overhaul” of certain accounts to “prevent discrepancies from occurring again,” and expected Romeo to “enhance her understanding of the business,” “explain business variances,” “identify missed revenue opportunities,” and “spend a little more time planning and organizing her thoughts before she presents them to others.” Id. at 2, 5–6. Romeo's overall performance was rated 3 out of 5. Id. at 6.

On February 27, 2009, Romeo emailed human resources director Ahlai Wojcik about the “need to speak to someone in HR on a huge issue.” ECF No. 13, Ex. G. On March 4, 2009, Romeo faxed Wojcik a complaint about her “disagreement with [her] current change of roles” and “year of torment” under Cuomo's supervision. ECF No. 13, Ex. H at 1–2. Romeo said that she had been forced out of the department so that Bishop could take her original job at a higher salary. Id. at 2. She accused Cuomo of having “strong animosity towards [her],” possibly because she “[is] a woman or because [she] [is] a black woman.” ⁶ She said that Cuomo “deliberately ma[de] [her] feel like [she] [didn't] exist,” and “ma[de] it painfully clear every single day that he [didn't] like [her] and perhaps the sight of [her] disgust[ed] him.” Id. at 2–3. She complained that he would not “speak to [her] on a daily basis unless a crisis ar[ose],” looked at her with “a scowl,” “attack[ed]” her verbally in “harsh tones,” and forbade her from “speak[ing] and laugh[ing] with others in the office.” Id. at 1–4.

Romeo's fax also noted that her “last review” had been “good on paper,” but the “face to face [had been] horrible.” ECF No. 13, Ex. H at 6. Cuomo had told her that she was “the only one who [felt] overwhelmed in the department and not open to take on more work,” “[e]xecutives need[ed] all these analytics and [she] [was] not delivering,” and “he [was] now forced to jump in and do [her] job.” Id. at 4–6. Romeo said that she had been “shocked” during her review when Cuomo said that the “CFO, Controller, [and] VP need[ed] requests and [she] [had not] produc[ed] them.” Id. at 5. She said that Cuomo had told her that managers and co-workers had complained about her performance, but when she approached these people, all had denied having complained. Id. at 5.

On April 23, 2009, Romeo was fired.⁷

On July 13, 2009, Romeo filed a complaint with the Maryland Commission on Human Relations and the Equal Employment Opportunity Commission (the “EEOC”), alleging race and sex discrimination and retaliation, in violation of Title VII and the Equal Pay Act of 1963 (the “EPA”).⁸ Am. Compl. ¶ 19, Ex. G (Discrimination Charge). She alleged that she had been moved to a new position without explanation, a “non-black male” had filled her former job, and he had received more pay than she had. Discrimination Charge. She further asserted that she had been fired after complaining about “harassment and hostile work environment.” Id.

On May 12, 2011, the EEOC issued Romeo a right-to-sue notice. Am. Compl., Ex. H. On August 9, 2011, she sued, alleging race and gender discrimination, retaliation, and negligent infliction of emotional distress.⁹ She asserted that:

• Cuomo had “yell[ed] at [her], curse[d] at [her][,] and ma[d]e disparaging comments towards [her].” Am. Compl. ¶ 12.

• In her presence, Cuomo had said that, “now that we have a black president [,] the country is going down,” an African American employee could “[n]ever be found because he and his wife [were] at an all you can eat [restaurant],” another African American employee had been late one day because she had been “at an all you can eat [restaurant] stuffing her face or probably somewhere getting her cholesterol checked,” and a third African American employee's waistline was attributable to HIV/AIDS. Am. Compl., Ex. I at 3.

• Romeo had been “subjected to tasks which were not expected of her male counterparts.” Cuomo had once asked her to “lift heavy boxes as her male, Caucasian” co-workers “looked on and ridiculed her.” Am. Compl. ¶ 36.

• Wojcik had sent Romeo's complaint to Cuomo, and Cuomo's yelling and cursing had “worsened.” Am. Compl. ¶¶ 11–12, Ex. C.

• Unlike her Caucasian co-workers, Romeo had been given no warning before her termination. Am. Compl. ¶ 18.

On November 22, 2011, APS moved to dismiss or for summary judgment.¹⁰ On December 9, 2011, Romeo opposed the motion. ECF No. 13. On December 30, 2011, APS filed a reply.¹¹

II. Analysis

APS argues that the Court should dismiss Romeo's claim for negligent infliction of emotional distress because it is not recognized in Maryland law. ECF No. 11–1 at 8–14. APS also argues that it is entitled to summary judgment on Romeo's retaliation and discrimination claims because she has not presented a prima facie case or rebutted APS's lawful reasons for firing her. Id. at 8–15.

A. Standards of Review

1. Standard of Review

Under Fed.R.Civ.P. 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. A Rule 12(b)(6) motion tests the legal sufficiency of a complaint, but does not “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006).

The Court bears in mind that Rule 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Migdal v. Rowe Price–Fleming Int'l, Inc., 248 F.3d 321, 325–26 (4th Cir.2001). Although Rule 8's notice-pleading requirements are “not onerous,” the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764–65 (4th Cir.2003). These facts must be sufficient to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

This requires that the plaintiff do more than “plead[ ] facts that are ‘merely consistent with a defendant's liability’ ”; the facts pled must “allow [ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ( quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). The complaint must not only allege but also “show” that the plaintiff is entitled to relief. Id. at 679, 129 S.Ct. 1937. “Whe[n] the...