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Wimbush v. Kaiser Foundation Health Plan of Mid Atlantic States, Inc.

United States District Court, D. Maryland

May 4, 2015



THEODORE D. CHUANG, District Judge.

This matter is before the Court on a Motion for Partial Dismissal filed by Defendant Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. ("Kaiser"), ECF No. 27, in which Kaiser moves to dismiss Counts 1-2, 6, 8-10, 12-17, and pans of Counts 3 and 5, of the 17-count Amended Complaint filed by Plaintiff Yulon Wimbush ("Wimbush"). Having reviewed the pleadings and the briefs, the Court finds no hearing necessary. See Local Rule 105.6 (D. Md. 2014), For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.


I. The Virginia Allegations

Wimbush is an African American woman who began working at Kaiser's call center in Fair Oaks, Virginia in October 2009. Am, Compl. at 3 ¶ 1, ECF No. 24. Wimbush alleges that in or around July 2010. she began experiencing sexual harassment from her then supervisor Chris Veney ("Veney") in the form of repealed, unwelcome comments and other conduct which created a hostile work environment. Id. at 3-7 ¶¶ 3-24. As a result, she suffered "severe depression and mental pain, " and on one occasion her extreme stress and fear caused her to be taken to the hospital by paramedics. Id. at 5 ¶¶ 11, 7 ¶ 21. Wimbush and others notified Veney's supervisor of the conduct, but no action was taken, Id. at 4-5 ¶ 9, 6 ¶ 20, 7 ¶ 22, 8 ¶ 27.

II. The Maryland Allegations

In or around January 2011, Wimbush applied for and received a transfer to Kaiser's Shady Grove, Maryland location, where she worked as a full-time receptionist in an outpatient healthcare facility. Id. at 8 ¶ 1. In March 2012, she was transferred to another receptionist position at Kaisers outpatient facility in Gaithersburg. Maryland. Id. at 8 ¶ 2. At the Gaithersburg location, Wimhush's direct supervisor was Katherine Butler ("Butler"), who was the Medical Center Administrative Director. Id. at 8 ¶ 3. In or around May 2012, Wimbush began serving as a union shop steward at that location for the Office and Professional Employees International Union. Id. at 8 ¶ 4.

Wimbush alleges that after she became a union shop steward. "Butler's behavior towards the Plaintiff began to change drastically for the worse." Id. at 8 ¶ 5. For example, when Wimbush sought a new position as a therapist aide in November 2012, Butler told the Kaiser official who was checking references on Wimbush that she was "notorious" for taking leave under the Family Medical Leave Act ("FMLA"), which caused Wimbush to lose the position, Id. at 9 ¶¶ 6-7. In December 2012, when Wimbush requested FMLA leave in order to care for her minor son. Butler denied her request and told her to "provide the child with medication and leave him home." Id. at 15 ¶¶ 5-7.

Wimbush also alleges that Butler discriminated against her on the basis of her race. She asserts that Butler required Wimbush to work without clerical assistance as a receptionist, even though she provided clerical support for two white receptionists; that Butler ignored Wimbush's requests for lime off; that Butler shut the door on Wimbush; that Butler refused to give Wimbush feedback, even though Butler provided "assistance and care" to white employees; that Butler altered Wimbush's schedule and gave her "better" shirt to a white coworker; and that Butler took credit for a proposal Wimbush had created. Id. at 9-11 ¶¶ 9, 11, 12-14. 17; 18 ¶ 12. Wimbush informed Butler's supervisor about the unfair treatment, but no action was taken. Id. at 10 ¶ 15.

Wimbush further alleges that in or around July 2013, an African American employee, Jessica Station ("Station"), approached her to express "serious concerns" about Butler "being a racist" who "treated her and the African American workers disparately from the Caucasian workers." Id. at 11 ¶ 18-19. At Station's insistence. Wimbush attended, in her role as union shop steward, a meeting between Butler and Station to discuss the issues between them. Id. at 11 ¶ 22. Then in or around August 2013, Wimbush was called into a meeting with Kaiser's Compliance Department and informed that there were rumors that Wimbush had called Butler a racist, and that the company considered such comments to be outside her role as a union shop steward. Id. at 12 ¶ 24-25. Although she denied making such comments, Wimbush was abruptly informed in September 2013 that she had been terminated for making false and malicious statements about management or personnel. Id. at 12 ¶ 27.

III. The Complaint

On February 24, 2014, Wimbush, proceeding pro se, filed a one-count Complaint against Kaiser for race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et Seq. (2012). on the basis of Butler's conduct. ECF No. 1. After Kaiser tiled its Answer. ECF No. 9. the Court issued a Scheduling Order and discovery commenced on May 2, 2014. ECF No. 10. When Wimbush obtained Counsel, she filed a Motion to Amend the Complaint, ECF No. 18, and a Motion to Amend the Scheduling Order, ECF No. 19. The Court granted both Motions. ECF Nos. 20, 26, On October 6, 2014, Wimbush tiled an Amended Complaint adding sex discrimination claims on the basis of Veney's conduct, as well as various tort claims and additional discrimination claims on the basis of both Veney's and Butler's conduct.

The specific counts, as numbered in the Amended Complaint, are as follows: (1) race discrimination under Title VII based on Butler's conduct ("the Maryland allegations"); (2) retaliation under Title VII arising from Wimbush's role in assisting Station in reporting race discrimination; (3) disparate treatment under Title VII. both on the basis of sex, relating to sexual harassment by Veney at the Virginia facility ("the Virginia allegations"), and on the basis of race, relating to the Maryland allegations; (4) hostile work environment under Title VII, based on the Virginia allegations; (5) violation of the Maryland Fair Employment Practices Act ("MFEPA"), Md. Code Ann., State Gov't §§ 20-601. et seq. (West 2014), based on the same conduct underlying all of her Title VII claims; (6) violation of Section 5 of the Montgomery County Personnel Regulations, Montgomery Cnty., Md., Personnel Regs. § 5-2 (2008), based on the same conduct underlying all of the Title VII claims; (7) sex discrimination under Title VII. based on the Virginia allegations; (8) sex discrimination under the Virginia Human Rights Act ("VHRA"). Va. Code Ann. § 2.X-XXXX-XXXX (West 2014), based on the Virginia allegations; (9) race and sex discrimination under the Fairfax County Human Rights Ordinance, Fairfax Cnty., Va., Code § 11-1-5 (2010), based on the same conduct underlying all of the Title VII claims; (10) wrongful termination in violation of Maryland public policy, based on the Maryland allegations; (11) violation of the FMLA, 29 U.S.C. §§ 2611-2654, based on Butler's denial of Wimbush's leave requests and Butler's statement regarding Wimbush's use of the FMLA; (12) negligent, wanton, and intentional conduct, based on both the Virginia and Maryland allegations; (13) negligent retention, training, and supervision, based on both the Virginia and Maryland allegations; (14) vicarious liability; (15) intentional infliction of emotional distress, based on both the Virginia and Maryland allegations; (16) invasion of privacy, based on Butler's statement relating to Wimbush's use of the FMLA, contained in the Maryland allegations; and (17) false light, based on that same statement.


I. Legal Standards

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Before filing suit under Title VII, a plaintiff is required to file an administrative charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). 42 U.S.C. § 2000e-5(f)(I). Under the precedent of the United States Court of Appeals for the Fourth Circuit, a failure to exhaust administrative remedies under Title VII should be addressed by way of a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).[1] Jones v. Culvert Group, Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009). On a Rule 12(b)(1) motion, the plaintiff bears the burden of proving that subject matter jurisdiction exists. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In considering a motion to dismiss for lack of subject matter jurisdiction, the court "is to regard the pleadings' allegations as mere ...

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