United States District Court, D. Maryland
Lipton Hollander United States District Judge
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.
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. 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
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.
Factual and Procedural Background
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.
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.
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.
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.
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
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.
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.
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.
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.'"
December 21, 2010, plaintiffs supervisors rated his
performance as "'Satisfactory'" in a
"Mid-Cycle PEP 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.
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.
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.
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.
the section "Supervisor[']s Comments, " Ringel
wrote, in relevant part, id. at 2:
an adequate SAS programmer. First impressions are of an
enthusiastic employee willing to take on any data processing
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.
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.
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
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,  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.
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 were that all employees were to be
rated Satisfactory, "
the summer and fall of 2011, Chen endeavored to improve his
job performance. See ECF 14 at 18 ¶11 56-59.
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.
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
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.
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.
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.
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.
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
3.1 did not "mock" anybody, nor
4. I have been using the internet uninterrupted to complete
my assignments, including the recent download and processing