Nesbitt v. Univ. of Md. Med. Sys.

DEBBIE NESBITT, Plaintiff, v. UNIVERSITY OF MARYLAND MEDICAL SYSTEM, et al., Defendants.

CIVIL NO.: WDQ-13-0125

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, NORTHERN DIVISION

Dated: December 6, 2013

MEMORANDUM OPINION

Debbie Nesbitt sued the University of Maryland Medical System ("UMMS"), Baltimore Washington Medical Center, Inc. ("BWMC"), and Frank V. Venuto (collectively, the "defendants") for employment discrimination and other claims. Pending are the defendants' motion to dismiss for failure to state a claim and Nesbitt's unopposed motion for leave to file a surreply. ECF Nos. 19, 23. No hearing is necessary. Local Rule 105.6 (D. Md. 2011). For the following reasons, the defendants' motion will be granted in part and denied in part, and Nesbitt's motion will be granted.

I. Background¹

Nesbitt, who was born in 1952, was hired by BWMC--a hospital owned and operated by UMMS--as a Human Resources ("HR") Recruiter on August 5, 1996.² ECF No. 18 ¶¶ 9-11. On May 12, 2008, Venuto was hired as vice president of the HR Division. Id. ¶ 14.

Soon after Venuto started, he began refusing to respond to Nesbitt's emails and avoided discussing work matters with her by initiating telephone calls when she was in his office. Id. ¶ 15. At meetings Venuto often interrupted Nesbitt, responded to her condescendingly, and refused to acknowledge Nesbitt when she volunteered to assist with a project. Id. ¶¶ 16-17. This occurred "continuously and persistently on a weekly basis." Id. ¶ 16. At one point, he interrupted Nesbitt while she was talking during a staff meeting by "exclaiming out loud 'you are killing me!'" Id. ¶ 17. Venuto permitted younger male workers unlimited time to speak during meetings and gave them positivefeedback. Id. ¶¶ 22-23. Venuto also accused Nesbitt in a staff meeting of "looking at his butt;" the Director of HR, Patricia Loughlin, told Venuto that he was incorrect. Id. ¶ 18. Nesbitt was "extremely embarrass[ed]" by the accusation. Id.

"Over time, [Venuto's] conduct" became "increasingly aggressive"--at least 12 incidents occurred in which Venuto "attempted to bully, intimidate and demean" Nesbitt "by yelling at her in front of other staff members over routine work-related matters." Id. ¶ 19. In April 2009, during a meeting with Loughlin and Nesbitt, Venuto "became very angry" with Nesbitt and "started yelling and physically shaking." Id. ¶ 20. He "condescending[ly]" told her "'Let me tell you something dear, I have covered your back'" and stated, without explanation, that he had been "'tasked with firing'" her "when he was hired." Id.

In May 2009, Venuto "yell[ed] at and berate[d] other female employees over work-related matters" during a staff meeting. Id. ¶ 21. However, Venuto did not "yell[] at[,] . . . belittle, undermine, or embarrass" male employees during the weekly meetings.³ Id. Instead, he "allow[ed] them unlimited time to discuss work related matters" and "provid[ed] positive feedback to their questions." Id. He also treated younger employees more favorably--he was "consistently dismissive" toward Nesbittand the other older women employees, but "more receptive" to younger employees, such as Dan Neal.⁴ Id. ¶ 23. On at least 10 other occasions, Nesbitt witnessed female employees crying after Venuto yelled at them. Id. ¶ 24.

Venuto's treatment of Nesbitt caused her anxiety and physical symptoms, requiring her to take medical leave from June 2009 until August 2009. Id. ¶ 26. When Nesbitt returned to work, Venuto "began to give ther] work assignments to younger employees." Id. He also continued to yell at her and interrupt her at meetings on a weekly basis, while treating male employees more favorably. Id.

On October 12, 2009, Nesbitt filed an internal complaint against Venuto, alleging hostile work environment and discrimination. Id. ¶ 29. UMMS and BWMC did not take any corrective action after investigating Nesbitt's complaint, but the president and general counsel of UMMS asked Loughlin to "use her friendship" with Nesbitt to discourage her from taking legal action or complaining to the Equal Employment Opportunity Commission ("EEOC"). Id. ¶¶ 29, 34.

In the meantime, Venuto's "persistent, hostile and discriminatory conduct" continued on a weekly basis. Id. ¶ 30. In January 2010, Venuto yelled at and threatened Nesbitt andthree other female employees "over a work-related issue." Id. ¶ 31. Nesbitt again began to suffer from anxiety and physical symptoms. Id. ¶ 32. On January 22, 2010, Nesbitt complained to UMMS's president and general counsel about Venuto's behavior. Id. ¶ 33. On January 27, 2010, Nesbitt was terminated by BWMC's president because of her complaints about Venuto. Id. ¶ 34. This termination violated BWMC's written progressive discipline policy because Nesbitt had not received any prior warnings or other disciplinary steps, and was the first time in 40 years that BWMC had not applied the policy in a case other than egregious employee misconduct. Id. ¶¶ 12, 36-37. Nesbitt refused a severance agreement offered in exchange for agreeing not to sue. Id. ¶ 34. On June 2, 2010, Nesbitt filed a charge with the EEOC against BWMC and UMMS,⁵ and, on June 29, 2012, received her right to sue letter. Id. ¶¶ 7-8; see ECF No. 2-1.

On September 21, 2012, Nesbitt filed suit in the Circuit Court for Anne Arundel County, Maryland alleging (1) hostile work environment (against UMMS and BWMC) (counts one and two), (2) disparate discipline (UMMS and BWMC) (counts three and four), (3) retaliation (UMMS and BWMC) (counts five and six), (4) breach of contract (BWMC) (count seven), (5) intentionalinfliction of emotional distress ("IIED") (Venuto) (count eight), (6) respondeat superior intentional infliction of emotional distress (UMMS and BWMC) (count nine), and (7) abusive discharge (UMMS and BWMC) (count ten).⁶ ECF Nos. 2, 18. On January 11, 2013, the defendants removed to this Court. ECF No. 1.

On January 18, 2013, the defendants answered Counts III and IV and moved to dismiss the remaining claims. ECF Nos. 10, 11. On March 7, 2013, Nesbitt moved unopposed for leave to file an amended complaint. ECF No. 15. On May 14, 2013, the Court granted Nesbitt leave to file an amended complaint and denied the motion to dismiss as moot. ECF No. 16. On May 14, 2013, Nesbitt filed an amended complaint.⁷ ECF No. 18.

On May 28, 2013, the defendants moved to dismiss counts one through four and eight through ten of the amended complaint. ECF No. 19. On June 14, 2013, Nesbitt opposed the motion. ECF No. 21. On July 1, 2013, the defendants replied. ECF No. 22. On August 20, 2013, Nesbitt moved unopposed for leave to file a surreply. ECF No. 23.

II. Analysis

A. Legal Standard for Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) 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. Rows 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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(2009) (quoting Twombly, 550 U.S. at 557). The complaint must not only allege but also "show" that the plaintiff is entitled to relief. Id. at 679 (internal quotation marks omitted). "Whe[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not shown--that the pleader is entitled to relief." Id. (internal quotation marks and alteration omitted).

B. Hostile Work Environment

Title VII prohibits an employer from discriminating against, an employee because of sex. 42 U.S.C. § 2000e-2(a)(1). Under the ADEA, an employer may not "discharge any individual or otherwise discriminate against any individual with respect to . . . privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). A plaintiff may plead a hostile work environment claim under these statutes.⁸

To state a hostile work environment claim, the plaintiff must allege facts showing that the offending conduct was: (1)unwelcome;⁹ (2) based on sex or age; (3) subjectively and objectively severe or pervasive enough to alter the plaintiff's conditions of employment and create an abusive atmosphere; and (4) imputable to the employer.¹⁰ See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001); Baqir, 434 F.3d at 745-46; Alston v. N. Carolina A & T State Univ., 304 F. Supp. 2d 774, 779 (M.D.N.C. 2004).

1. Continuing Violation

The defendants contend that Nesbitt cannot base her hostile work environment claims on actions that took place more than 300, days before she filed her EEOC charge on June 2, 2010--events before August 6, 2009--because "she has not properly invoked the continuing violation doctrine." ECF No. 19-1 at 14. Nesbittasserts that "the Amended Complaint contains sufficient factualallegations of a continuous course of harassment up to Plaintiff's termination." ECF No. 21-1 at 10.

Under the continuing violation theory, "[i]f one act in a continuous history of discriminatory conduct falls within the charge...