United States District Court, D. Maryland
L. Hollander United States District Judge.
First Amended Complaint (ECF 12), plaintiff Mevla Paunovic
has sued her former employer, Genesis Healthcare, LLC
(“Genesis”),  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.”).
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.
argument is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons set forth below, I shall
grant the Motion.
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.
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.
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.
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.
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
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.
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.
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.
27, 2017, Paunovic filed a second complaint with the EEOC.
She alleged age discrimination, retaliation, and discharge.
Id. ¶ 45.
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. ¶
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
STANDARDS OF REVIEW
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).
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).
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).
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.
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 . . . ...