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Paunovic v. Genesis Healthcare, LLC

United States District Court, D. Maryland

July 17, 2018

MEVLA PAUNOVIC Plaintiff
v.
GENESIS HEALTHCARE, LLC Defendant

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         In a First Amended Complaint (ECF 12), plaintiff Mevla Paunovic has sued her former employer, Genesis Healthcare, LLC (“Genesis”), [1] defendant. In her suit, which contains four counts and is supported by exhibits, plaintiff seeks compensatory damages, back pay, and “front pay, ” based on claims of retaliation, age discrimination, and wrongful discharge, in violation of the Maryland Health Care Worker Whistleblower Protection Act, Md. Code (2014 Repl. Vol.), §§ 1-501 to 1-506 of the Health Occupations Article (“H.O.”), and the Maryland Fair Employment Practices Act (“FEPA”), Md. Code (2014 Repl. Vol.), § 20-601 to § 20-610 of the State Government Article (“S.G.”).[2]

         Defendant has moved to dismiss Counts I and III, and to strike Count IV. ECF 13. The motion is supported by a memorandum (ECF 13-1) (collectively, the “Motion”). Plaintiff opposes the Motion (ECF 14), supported by a memorandum (ECF 14-1) (collectively, the “Opposition”). Defendant has replied. ECF 15.

         No oral argument is necessary to resolve the Motion. See Local Rule 105.6. For the reasons set forth below, I shall grant the Motion.

         I. BACKGROUND

         Paunovic was employed by Genesis from October 31, 2013 until June 30, 2017, as a licensed Certified Occupational Therapy Assistant. ECF 12, ¶¶ 1, 3. In April 2015, Paunovic's immediate supervisor began to harass her, including by questioning her skills in front of patients and other therapists. Id. ¶¶ 10-12. That same month, Paunovic asked to be transferred to another Genesis facility. Id. ¶ 7. She was informed that she could do so if she was willing to take a reduction in pay, even though two of her younger colleagues were permitted to transfer without taking any pay cut. Id. ¶¶ 8-9. Paunovic decided to remain at her current location, but complained to her clinical supervisor about her immediate supervisor's harassment. Id. ¶ 13.

         On May 22, 2015, Paunovic's clinical supervisor had “an argument” with plaintiff's immediate supervisor. Id. ¶ 14. In the aftermath of this dispute, Paunovic's immediate supervisor “began to severely harass” plaintiff. Id. As a result, Paunovic requested a meeting with yet another of her supervisors, the Director of Rehabilitation. Id. ¶ 15. The next day, Paunovic suffered a heart attack, allegedly due to the stress she endured from the harassment. Id. ¶ 16. When Paunovic returned to work, she again met with her supervisors. They acknowledged the harassment, but allegedly took no action to address it. Id. ¶ 19.

         Paunovic filed a grievance in January 2016 with Genesis's Area Director. Id. ¶ 20. She complained about an annual review she received at the end of 2015 and about another instance of harassment. Id. Specifically, Paunovic alleged that the Director of Rehabilitation had verbally and physically threatened her during a dispute regarding an incomplete progress note for a patient. Id. ¶¶ 21-22. On January 11, 2016, the Area Director determined that there was no evidence to support plaintiff's allegation, and issued a written warning for insubordination and a corrective action plan. ECF 12, ¶ 23. Five months later, Paunovic objected to the corrective action plan, but her objection was ignored. Id. ¶ 24.

         In July 2016, Paunovic became concerned that her patients were being billed incorrectly. Id. ¶ 25. Her concern related to the manner in which group therapy patients were being charged. Id. Although Genesis's policy is to bill group therapy patients only for the portion of each therapy session in which he or she receives individualized attention, Paunovic believed patients were being billed for their entire sessions. Id. ¶¶ 28-30. On July 20, 2016, she raised this concern with both the Area Director and the “Director of Rehab” for the Cromwell/Loch Raven Campus. Id. ¶¶ 25, 29. These individuals told Paunovic to continue billing each group therapy patient for the entire 60 minutes of each therapy session, id. ¶¶ 33, 38, and assured her that the computer would ensure that each patient was billed properly. Id. ¶ 34.

         However, the billing change did not occur. Id. Therefore, plaintiff alleged that “Medicare, Medicaid and managed care (PPS) are being defrauded when each patient in a 4 patient, one hour group is allocated the entire 60 minutes of service.” Id.

         In September 2016, the Director of Rehab for the Cromwell/Loch Raven Campus approached Paunovic in the gym and asked her to complete a self-evaluation, which Paunovic refused to do in light of prior bad experiences with self-evaluation. Id. ¶ 39. The Director subsequently accused Paunovic of speaking about personnel matters in a public area, as a result of which Human Resources issued Paunovic another corrective action plan. Id. ¶ 40. On a seemingly unrelated note, Human Resources asked Paunovic if she was willing to continue performing group therapy sessions. Id. Paunovic said she was, and agreed to bill each group therapy patient for the entirety of his or her session. Id.

         Although Paunovic had received only positive performance evaluations at that point, she began to believe she was going to be discharged. Id. ¶ 41. As a result, on November 16, 2016, she filed a charge of age discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”). ECF 12, ¶ 42. On May 5, 2017, the EEOC issued a notice of her right to sue. Id.

         Over a month later, on June 16, 2017, Paunovic reported Genesis's group billing practice as Medicare fraud, via the Medicare fraud tip line. Id. ¶ 43. The next week, on June 20, 2017, Genesis discharged Paunovic. Id. ¶ 44. At the time, plaintiff was 66 years of age. Id., ¶ 55.

         On June 27, 2017, Paunovic filed a second complaint with the EEOC. She alleged age discrimination, retaliation, and discharge. Id. ¶ 45.

         Paunovic filed suit against Genesis in the Circuit Court for Baltimore County on July 12, 2017. See Mevla Paunovic v. Genesis Healthcare, LLC, Civil Action No. 03-C-17-006717. A Special Agent from the Department of Health and Human Services, Office of Inspector General, met with Paunovic at her home on August 21, 2017, concerning the alleged Medicare fraud. Id. ¶ 46. On August 25, 2017, the EEOC again issued a notice of right to sue. Id. ¶ 45.

         On August 25, 2017, Genesis removed the state court case to this Court, based on diversity of citizenship. See 28 U.S.C. § 1332. ECF 1. After Genesis filed an initial Motion to Dismiss, ECF 9, Paunovic filed an Amended Complaint. ECF 12. Genesis then filed the pending Motion. ECF 13.[3]

         II. STANDARDS OF REVIEW

         A. Rule 12(b)(6)

         Genesis has moved for partial dismissal under Fed.R.Civ.P. 12(b)(6). The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the sufficiency of a complaint. See In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom. McBurney v. Young, 569 U.S. 221, 133 S.Ct. 1709, 185 L.Ed.2d 758 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).

         A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). It provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to ensure that defendants are provided with “fair notice” of the claim(s) made against them and the “grounds” for entitlement to relief. Bell Atl., Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions' . . . .”) (citation omitted); see also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., __U.S. __, 135 S.Ct. 346, 346 (2014) (per curiam).

         “When determining whether a complaint fails to comply with Rule 8(a), ‘courts have looked to various factors, including the length and complexity of the complaint, whether the complaint was clear enough to enable the defendant to know how to defend himself, and whether the plaintiff was represented by counsel.'” Rush v. Am. Home Mortg., Inc., WMN-07-854, 2009 WL 4728971, at *4 (D. Md. Dec. 3, 2009) (emphasis added) (internal citations omitted) (quoting North Carolina v. McGuirt, 114 Fed.Appx. 555, 558 (4th Cir. 2004) (per curiam)). A court may properly dismiss a complaint under Rule 12(b)(6) for failure to comport with Rule 8(a) if the complaint “does not permit the defendants to figure out what legally sufficient claim the plaintiffs are making and against whom they are making it.” McGuirt, 114 Fed.Appx. at 559.

         Thus, a complaint requires more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action, ” it is insufficient. Twombly, 550 U.S. at 555. To satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . ...


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