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Chen v. Maryland Department of Health and Mental Hygiene

United States District Court, D. Maryland

August 29, 2016

YING-JUN CHEN, Plaintiff,


          Ellen Lipton Hollander United States District Judge

         Ying-Jun Chen, a Chinese-American who is self-represented, filed suit against his former employers, the Maryland Health Care Commission ("MHCC") and the Maryland Department of Health and Mental Hygiene ("MDHMH" or "DHMH"), as well as the Secretary of MDHMH, Van T. Mitchell; the Acting Director of MHCC, Michael Steffen; and an MHCC administrator, - Bridget Zombro (the "Individual Defendants"). Chen alleges harassment and discrimination based on national origin, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"); the Fourteenth Amendment to the United States Constitution; and Article 26 of the Maryland Declaration of Rights. ECF 1.

         By Memorandum Opinion (ECF 12) and Order (ECF 13) of February 17, 2016, 1 granted "Defendants' Motion to Dismiss" (ECF 6), with leave to amend the Title VII claim for discrimination as to the MHCC, the MDHMH, and the Individual Defendants in their official capacities. Chen subsequently filed an "Amended Complaint for Declaratory Relief, Injunctive Relief, Damages, and Costs" (the "Amended Complaint"). ECF 14. It is supported by numerous exhibits. ECF 14-2 through ECF 14-21.[1] Defendants have moved to dismiss the Amended Complaint (ECF 15), pursuant to Fed. R. Civ. P, 12(b)(6), accompanied by a memorandum of law (ECF 15-1) (collectively, the "Motion"). Chen opposes the Motion (ECF 22, the "Opposition"), and defendants have replied. ECF 27 (the "Reply").[2]

         The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will deny the Motion.

         I. Factual and Procedural Background[3]

         The MDHMH is "a principal unit in the executive branch of state government." Id. at 5 ¶ 14. MHCC is "an independent regulatory agency that functions within MDHMH." Id. at 5 ¶ 16. Chen joined the MHCC in December 2009 and worked as a policy analyst. ECF 14 at 7 TO 23-24.

         Chen was born in China (id. at 41 ¶ 131) and became a naturalized U.S. citizen in 2007. Id. at 5 ¶ 13. He was terminated from State employment on January 18, 2012. Id. at 37 ¶ 111; see ECF 14-17 at 5-7, Notice of Termination.

         According to Chen, he has a "noticeable accent . . . ." ECF 14 at 41 ¶ 130. He also claims that he was "the only foreign born Policy Analyst working in MHCC" and that "[o]nly a handful [of] others like him in [the] MDHMH-wide workforce of 6, 000-plus professional staff were identified as foreign born professionals." Id. at 7 ¶ 23.

         When Chen first joined the MHCC, he was "placed on a 180-day probation period, during which he stood to lose the position if any performance problems arose." Id. at 7-8 ¶ 25. "[T]his probationary period was a standard opportunity afforded to all policy analysts to allow them to gain a prospective [sic] of MHCC programs related to medical facilities and services." Id. at 8 ¶ 25. Chen satisfactorily completed his probationary period in June 2010. Id. at 8 ¶ 26. From December 2009 until November 2010, he "performed his duties, by all accounts, satisfactorily." Id.

         Chen contends that he was subjected to a series of adverse employment actions because of his national origin. He asserts, id. at 2 ¶ 3:

During the last twelve months of his employment with MHCC, Plaintiff received three suspensions for a total of thirty workdays without pay and two fraudulent unsatisfactory performance ratings. After Plaintiff returned from consecutive suspension[s], he was forced to take a leave and not allowed to return to his office for having allegedly failed to meet standards. ... He was then terminated without just cause and for stated reasons that are obvious pretext for discrimination on the basis of national origin against him.

         In particular, Chen maintains that on December 2, 2010, "amidst intense focus".on an assignment, Linda Bartnyska, his supervisor, "walked in [his] cubicle and started yelling at him for being unresponsive to an e-mail she had just sent." ECF 14 at 9 If 28. Chen "stayed calm." Id. After Chen responded to the email he "walked to [Bartnyska's] office and explained why he missed her email, hoping to calm her down." Id. Chen submits, id.: "He took a bow - as in leaning his upper body slightly -- over a conference table to regret [sic]." Id.

         Chen was subsequently called to a meeting with Zombro, who "told [Chen] that he faced a five-day suspension without pay for 'what happened between you and your supervisor on December 2, 2010' . . . ." Id. at 9 ¶ 29. Chen avers, id. at 9-10 ¶ 31 (alterations in original): "The Notice of Disciplinary Action given on December 7, 2010, indicates that the disciplinary action was based on Defendant Zombro applying to him 'inappropriate behavior in workplace' -in reference to the 'conversation in her [Bartnyska's] office where you raised your voice and leaning [sic] over a conference table in a manner that was intimidating.'" (Brackets in original). According to Chen, he "explained to Zombro that he did not yell, or raise his voice, on that day, as charged, and that he was trying to calm his supervisor down after another instance of her outbursts, of which Zombro was well aware." Id. at 10 ¶ 33. When Zombro refused to reconsider Chen's suspension, Chen asked to speak with Steffen, his "second-level supervisor." Id. at 10 ¶ 34. Zombro then told Chen, id. (alterations in original): '"Ben [Steffen] had left early for the day. But, if you agree to resign after the report's [sic] released, everything would be fine."' Chen refused. Id.

         Thereafter, Chen appealed his five-day suspension to Rex Cowdry, MHCC's Executive Director, See Id. at 10, 12 ¶¶ 35, 39; ECF 14-2 at 2-3, email from Chen to Cowdry, dated Dec. 22, 2010. By email of January 7, 2011, Cowdry denied Chen's appeal. ECF 14-2 at 4. Cowdry wrote, in pertinent part, id.:

In your appeal, you have restated your assertions about your behavior, but have presented no new evidence, nor any witnesses to corroborate your description of the events. In contrast, several individuals corroborate various parts of your supervisor's description of the events. There are no grounds for a reversal on this basis.

         According to plaintiff, ECF 14 at 12 ¶ 36: "Defendant Zombro did not impose any discipline on Bartnyska for her outbursts in yelling at the start of the incident, an very [sic] inappropriate behavior that was very 'disruptive to many of your co-workers.'"

         On December 21, 2010, plaintiffs supervisors rated his performance as "'Satisfactory'" in a "Mid-Cycle PEP[4] Evaluation." Id. at 12 If 38. About a month later, on January 20, 2011, "Bartnyska lauded praise and appreciation of Chen's analytic works" with respect to a biennial MHCC report. Id. at 13 ¶ 40.

         Chen alleges that, on or about April 14, 2011, Zombro assigned him to assist Leslie LeBrecque and Norman Ringel, who worked in a different division, with '"programing assignments . . ..'" Id. at 14 ¶ 43. Thereafter, Chen "divid[ed] his time between two divisions . . .." Mat 14 ¶45.

         At some unspecified point in April 2011, Cowdry resigned and Steffen was named "acting director of MHCC." Id. at 14-15 ¶ 47. Chen asserts, id. at 15 ¶ 48 (emphasis and alterations in original):

In late afternoon of a Friday in late April, Bartnyska told Chen that they would go to "happy hours" [sic] after work in a nearby bar on Reistertown Road to celebrate Steffen's "promotion." When Chen arrived after his workday, he saw Steffen with three co-workers- Bartnyska, [Karen] Rezabek and [Suellen] Wideman- in a booth. Steffen seemed surprised at Chen's presence, and still offered him "a beer on my tab." When Chen opted for a non-alcoholic brand because he had a long driving [sic] home afterward, Steffen seemed annoyed, "If you want to drink with us, drink like an American." Chen took it as a crack joke and just laughed it out loud. Later on and to Chen's surprise, Steffen said in a demeaning tone, "You should go home if you don't drink American [alcoholic] beer, " as he squeezed himself out of the booth before embarking on his way down the stairway and out of the bar. Chen was speechless amidst moments of silence. He soon bowed to the co-workers and out [sic] on his way home in Virginia.

         On June 23, 2011, Chen received an "End-Year PEP Evaluation with an unsatisfactory overall rating, which was prepared and signed by Norman Ringel, with whom Chen had only worked for three months." Id. at 15 ¶ 49. The evaluation (ECF 14-5 at 2-7) is only partially legible. Ringel rated Chen's performance as "Unsatisfactory" in the following categories: "Works cooperatively with others to implement the Department's goals"; "Speaks effectively"; "Writes effectively (clear, organized, appropriate grammar, punctuation)"; "Interacts positively with co-workers"; "Is courteous to customers and co-workers"; "Provides timely, accurate and appropriate information to internal and external customers"; "Keeps commitments and follows through on customer requests"; "Solves problems without being asked"; "Engages in opportunities for self-improvement"; "Appropriately prioritizes work"; "Completes assignments accurately and on time"; "Exercises appropriate judgment"; and "Follows directions." Id. at 5.

         Under the section "Supervisor[']s Comments, " Ringel wrote, in relevant part, id. at 2:

         Chen is an adequate SAS programmer. First impressions are of an enthusiastic employee willing to take on any data processing task.

Second impressions reveal an individual who may go off in his own direction, needs improvement with communication skills, may not follow directions and cooperate with staff, and may not take certain initiatives.

         Chen maintains that his June 2011 PEP Evaluation did not accurately reflect his performance as it evaluated only his work on programming assignments. ECF 14 at 16 ¶ 50. Moreover, Bartnyska, his "immediate supervisor, " had not discussed the evaluation with him. Id. According to plaintiff, however, he was unable to address his concerns about the evaluation before Ringle's retirement. See id. at 16 ¶ 51.

         On July 6, 2011, Zombro approached Chen concerning the PEP Evaluation that Ringle had prepared. Id. at 16 ¶ 52. Zombro asked Chen to sign the evaluation, and Chen initially refused. Id. at 16-17 ¶ 52. However, Zombro ultimately persuaded Chen to sign the PEP Evaluation, with the assurance that '"[n]o one would bother to read this stuff in six months . . . and as your [immediate] supervisor, I would hold the line so your future ratings not [to be] [sic] affected by this [unsatisfactory rating].'" Id. at 17 ¶ 53 (alterations in original).

         After Chen arrived at work on July 12, 2011, he received a copy of his PEP Evaluation with an "extra 2-page document titled 'performance improvement plan', or PIP . . ., which he had never seen, nor was it certified by anybody, as required by the relevant PEP Guidelines for a PIP." Id. at 14 ¶ 54. A "Performance Improvement Plan" ("PIP") as to Chen, dated June 23, 2011, identified his performance in the following areas as "Needs Work (Unsatisfactory)": "Working independently"; "Self checking results"; "Ability to understand and use statistical formulas"; "Ability to accurately/clearly explain analytical results in written text"; "Demonstrates an increasing knowledge of the MCDB, [5] expertise in its use"; "Prepares at least one technical analysis using the MCDB"; "Reports progress, resolves questions needing decision with supervisor"; "Provides data analysis, text development, and document reviews for the health insurance coverage report"; "Prepares at least one technical analysis using the MCDB or other data in accordance with the approved study and design and timeline." ECF 1-9 at 2.

         The PIP also stated, id. at 3: "This plan will be reviewed monthly, as necessary, to work with Linda/Leslie on areas of difficulty and to note areas of strength. This plan, and any amendments, will be considered for the mid-cycle PEP, to take place on or before December 31st, 2011. The performance under the plan will be reevaluated in 180 days starting July 1, 2011." A "Special Note" at the end of the PIP stated, in relevant part, id.: "Mr. Chen was rated as satisfactory during his mid-term evaluation; it was due to the implement [sic] of a new performance evaluation system. Instruction[s] from DBM[6] were that all employees were to be rated Satisfactory, "

         During the summer and fall of 2011, Chen endeavored to improve his job performance. See ECF 14 at 18 ¶11 56-59.

         On or about October 27, 2011, LaBrecque "walked in Chen's cubicle, and, without permission, took a picture of his personal cellphone.'" Id. at 19 ¶ 60 (emphasis in original). The following day, October 28, 2011, Chen's "desktop access to Internet [sic] was abruptly removed without notice." Id. at 19 ¶ 61. Because Chen required internet access to perform his job, he repeatedly requested restoration of his internet access. See Id. at 19 ¶¶ 61-62.

         Chen met with LeBrecque and Zombro on November 2, 2011. Id. at 19 ¶ 63. He avers, id.: "They told him, in raised voices, that his access was suspended because of his unsatisfactory performance appraisal in July 2011." Chen "became very upset because he needed the access for his work assignment and in fact had such access until late October." Id. According to Chen, the "Performance Planning & Evaluation Program (PEP) Guidelines & Instructions" (ECF 1-15, the "PEP Guidelines") do not provide for the "removal of access to Internet associated with [a] particular rating of performance .. .." ECF 14 at 19 ¶ 65.[7]

         During Chen's meeting with LeBrecque and Zombro on November 2, 2011, they also "discuss[ed] [his] late return from lunch a few days earlier as a possible AWOL, even though [Chen] had made it up his [sic] lost time by having worked extra hours in the evening on the same day, and apologized, when turned [sic] in his timesheets, for not clearing it in advance." Id. at 20 ¶ 66.

         On November 3, 2011, LeBrecque sent an email to Steffen with a copy to Zombro, concerning "Chen's verbal counseling session" on November 2, 2011. ECF 14-9 at 2. Chen claims that LeBrecque's email "depict[ed] ... his behavior in demeaning terms and [made] false allegations." ECF 14 at 20-21 ¶ 68. The email said, in part, ECF 14-9 at 2:

Last week I walked into Chen's office and he was on the internet and I asked him how he was able to access the internet because we had previously removed his access after his last evaluation. Chen said I cannot keep him off the internet because he bought a modem and a data plan and can get it that way. I was extremely alarmed at hearing this because connecting a modem to his computer which is connected to the network would violate the terms of many of our data use agreements and presents a significant security problem. I investigated further and was unable to find a modem, but in the process found out that his internet access was restored during our last power outage. I asked Marty to remove his access immediately and brought the whole issue up with Bridget because of the possible security issues and because he violated the terms of his performance improvement plan. Chen continues to suffer with his productivity and it has been necessary for timeliness reasons to reassign projects that he was unable to complete.
Yesterday Bridget called me into her office to go over [Chen's] performance improvement plan and conduct a verbal counseling with Chen. Chen freely admitted using the internet even though he was instructed not to do so after his last evaluation due to his internet use taking time away from getting projects completed. Further he demanded to have his internet access restored and proclaimed that internet use during work hours is a right not a privilege. Chen repeatedly mocked Bridget for reprimanding him and laughed out loud at her several times. He raised his voice many times while cutting off Bridget as she was explaining why his behavior is unacceptable. Chen constantly changed the subject and attempted many times to tell Bridget how he thinks things are instead of listening. Chen threatened to go to the Secretary and to the Governor if his internet access was not restored.

         Also by email of November 3, 2011, Zombro notified Chen that his "timesheet has been changed from code 50 (preapproved personal time) to code 86 (unauthorized leave)[.] You will not be paid . . . [f]or the 2.7 hours that you were not in the building on October 28th, 2011." ECF14-8 at 2.

         By email to Chen of November 4, 2011, Steffen stated, in pertinent part, ECF 14-10 at 2:

I understand that a meeting was held Wednesday with Leslie and Bridget regarding work performance and Internet use. They have sent me a description of your behavior during the meeting. I have carefully read their descriptions of that meeting. Consistent with state policy, I would like you to provide your perspective on the meeting.

         Chen responded, id, :

1. I would like to apologize for being emotional in conversation with Bridget (I still think that they've been coming too hard on me, unbearable at times);
2. I have abided, and will continue to abide, all the provisions of the MHCC's Telecommunication Usage Agreements;
3.1 did not "mock" anybody, nor "threaten" anything;
4. I have been using the internet uninterrupted to complete my assignments, including the recent download and processing of ...

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