United States District Court, D. Maryland
L. Hollander United States District Judge.
Vaziri, the self-represented plaintiff, filed an employment
discrimination action against her former employer,
“Levindale Hospital/Life Bridge Health.” ECF 1
(Complaint). Plaintiff alleges discrimination on the
basis of her national origin (Iran); religion (Muslim); age
(58 years); and disability (diabetes and her daughter's
“generalized anxiety disorder”). Id. In
particular, plaintiff claims that she was denied training,
denied a preferable shift at Levindale, and ultimately
terminated as a result of discrimination and in retaliation
for filing a discrimination complaint. Id.
was filed on June 6, 2017, pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), as amended, 42
U.S.C. §§ 2000e-2000e-17; the Age Discrimination in
Employment Act of 1967 (“ADEA”), as amended, 29
U.S.C. §§ 621-634; and the Americans with
Disabilities Act of 1990 (“ADA”), as amended, 42
U.S.C. §§ 12112-12117. ECF 1 at 5. Defendants moved
to dismiss most of plaintiff's claims, pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6). ECF 5. By Memorandum (ECF
18) and Order of March 8, 2018 (ECF 19), I dismissed
LifeBridge as a defendant and dismissed plaintiff's
claims for religious discrimination, national origin
discrimination, age discrimination, and disability
discrimination, all without prejudice. However, I denied
defendants' motion as to plaintiff's retaliation
claim. I also granted plaintiff leave to file an Amended
filed an Amended Complaint against Levindale and LifeBridge
(ECF 20 at 1-8), with numerous exhibits (ECF 20 at 9-26; ECF
20-1). The Amended Complaint largely
duplicates the claims that were asserted in the initial
Complaint. See ECF 20 at 1-8.
pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6), and 56,
defendants filed a “Motion to Dismiss, or,
Alternatively, Motion for Summary Judgment” (ECF 24),
supported by a memorandum of law (ECF 24-1) (collectively,
the “Motion”) and several exhibits. ECF 24-3 -ECF
24-10. They contend that the Court lacks subject matter
jurisdiction in regard to Vaziri's religion and
disability discrimination claims. ECF 24-1 at 19-20. And,
they maintain that the Amended Complaint fails to state
claims for discrimination based on national origin and age.
Id. at 21-24. Defendants also assert that
plaintiff's retaliation claim fails as a matter of law.
Id. at 25-28.
opposes the Motion (ECF 28, the “Opposition”),
supported by twenty-four exhibits. ECF 28-2 - ECF 28-25. In
her Opposition, she “remove[d]” her claims of
discrimination with respect to “disability, national
origin and religion.” See ECF 28 at 1. But,
she seeks to pursue her claims based on retaliation and age
discrimination. Id. Defendants have filed a reply
(ECF 36), with numerous exhibits. ECF 36-2 - ECF 36-19.
has also moved for leave to file a surreply. ECF 37
(“Motion for Surreply”). Defendants did not
respond, and the time to do so has passed. See Local
hearing is necessary to resolve the motions. See
Local Rule 105.6. For the reasons that follow, the Motion for
Surreply (ECF 37) shall be denied, and the Motion (ECF 24)
shall be granted in part and denied in part.
asserts that she is now 58 years old, and has “almost
39 years of experience as a registered Nurse”, in areas
such as “Medical surgical, Intensive Care Unit,
Emergency Room, IV Therapy, Hemodialysis, Pediatric,
Inservice Educator, College Instructor, manager and Nursing
Supervisor.” ECF 1 at 4, 5. On March 21, 2011, she
began her employment with LifeBridge, as a Nursing Supervisor
at the Levindale Hospital (“Levindale”) location.
ECF 20, ¶ 1. According to Vaziri, during her
tenure at Levindale she “was employed and paid by
[L]ifeBridge [H]ealth . . . .” Id; see
also id. at 8. She asserts: “Every aspect of
[Levindale] was controlled by [LifeBridge].”
Id. at 7-8.
the course of Vaziri's employment, “on numerous
occasions [she] reported wrongdoing of some of the
employees” to her supervisor, Virginia Saunders.
Id. ¶ 2. Those employees include Rita Chikeka,
a day-shift supervisor; Maria Cohen, a night-shift
supervisor; and Tulasy Surrendran, a night-shift supervisor.
Id. ¶¶ 2-3.
claims that Saunders “provoked” the other
employees against Vaziri, as they “became nasty, and
disrespectful, and non-cooperative with [Vaziri].”
Id. ¶ 3. For example, the employees would talk
in their native languages “about [her] and make fun
of [her] daughter's sickness.” Id. ¶
4. Vaziri says that she “felt isolated and lonely
because of their behaviors.” Id.
reported “the issue” with Saunders to Candace
Hamner, Vice President and Chief Nursing Officer of
Levindale, as well as to John Robison, the Administrator of
Levindale. Id. ¶ 5. In an email to Hammer of
June 30, 2014 (ECF 28-4), Vaziri stated, in relevant part,
id. at 2:
. . . Staff do not listen to me because I report to
[Saunders] that is the way of her reaction toward me. she put
me down in front of others trough [sic] the E mail. How she
is expecting staff to follow me when there is no support from
her. I do not know what I did wrong that she thinks I deserve
to be treated like this? I am a RN with 35 years of
experience in different units and different specialty [sic].
whatever I apply for any position, she do[es] not offer me
the position but they offer it [to] Rita or [an]other person
that their qualification and experience is less than me.
also asserts that her twelve-year-old daughter suffers from
“generalized anxiety disorder, ” and that she
requested a day shift position so that she could be home with
her daughter at night. ECF 20 at 2. Vaziri complains that
Saunders denied this request and “preferred to choose
younger, less experience[d] employees.” Id.
Those employees included Irene Burk, “an interim unit
manager” who “later became [a] permanent unit
manager” but initially had no “Manager or
Supervisory experience”; Maria Cohen, a “Unit
Manager”; Vashtie Archer, a “newly
graduated” nurse with no nursing or supervisory
experience, who “was hired for [a] day shift
supervisory position”; and Crystal Henry, “who
was young and [had] no supervisory experience” but
“was hired for [a] day shift supervisor
position.” Id. at 2-3.
to Vaziri, a “day shift Nursing Supervisor”
requires “less qualifications compared to [the] night
shift.” Id. at 4. As a result, she “did
not understand which qualification [she] was lacking,
compared to those young[er] employees who were chosen for day
shift positions.” Id. During her tenure at
Levindale, Vaziri claims that “there was no any [sic]
evidence or incident report against [her].”
Id. She avers: “Nothing wrong happened to any
residents or patients during my duty.” Id. at
unspecified date in 2015, Vaziri switched shifts with
Ebinizer Akintola, a day shift supervisor. Id. at 4.
During a morning meeting that day, Vaziri alleges that
Saunders and Michelle Preston, the Director of Nursing at
Levindale, “were very mean to [her] and did not look in
[her] eyes even one time, did not talk or communicate”
with her, but “were very nice to other people and
staff.” Id. “Their behavior made [her]
very sad, ” and she “went to the supervisor's
office and . . . cried.” Id.
then “reported this behavior” to Human Resources
Director Gina Dembeck. Id. In an email to Dembeck on
July 29, 2015, Vaziri wrote, ECF 28-17:
As I talked to you I feel that I have been discriminated, As
you know I have family health problem that puts my daughter
in a dangerous position. I have been talking to you,
Michelle, Gloria, and [G]inger for a long time and I was
applying constantly for different day positions. which [sic]
none was offered to me
In an email of September 4, 2015 (ECF 28-6) to Idriz Limaj,
the Chief Operating Officer of LifeBridge, Vaziri wrote, in
I have been talking, sending E-mail to my Managers (Ginger
Saunders and Michelle Preston) and Human resources over and
over and applying for day shift positions all over the place.
After 37 years working as a RN in too many different
specialty units, as Nursing supervisor in [L]evindale almost
5 years, and nine years management and supervisory
experience. they are telling me that I am not qualified even
for a position that I am already in.
I have to add that more than a year ago I reported some staff
poor performances to Ms. Ginger.
Ms. Ginger did not handle the issue properly and she let the
same staff to confronted [sic] me and created bad condition
for me which made me frustrated. I reported the issue to Mr.
John Robison, the administrator and Ms. Hamner. Since then
MS. [sic] Ginger did not approve me for any position which I
applied. Apparently she have influence . . . Ms. Preston who
is not considering me for any position either.
August 2015, Preston conducted Vaziri's “annual
performance appraisal” (ECF 24-5, “2015
Appraisal”), “which was shared with [Vaziri] on
September 4, 2015.” ECF 24-3 (“Preston
Affidavit”), ¶ 6. “Vaziri received an
overall ranking of ‘Needs Improvement,' the lowest
possible ranking.” Id. “Among the more
significant performance deficiencies” that Preston
identified were Vaziri's “unfamiliarity with
documenting and implementing patient care.”
Id. ¶ 7.
Preston “had concerns about . . . Vaziri's
professionalism.” Id. ¶ 8. Preston
explained: “Akram at times can be viewed as
unapproachable to staff and peers. It is important to learn
to take constructive feedback without getting defensive. It
is also important to learn to actively listen to others to be
able to appreciate their view point. Akram would benefit from
taking a leadership class pertaining to positive
communication.” ECF 24-5 at 2. Further, Preston
observed, id. at 3: “There is a lack of trust
and teamwork with Akram and her peers. She also struggles
with positive communication, actively listening and taking
ownership of the situation.”
Preston concluded, id. at 9:
Akram does a good job rounding on staff and patients and
providing feedback to the managers. She takes the time to
educate team members when there is something that they do not
know. Akram could improve on her ability to take constructive
feedback without getting upset and defensive. It would be
beneficial to Akram to see the supervisors as a team rather
than individually. I would like to see Akram improve on her
ability to work within a group that is diverse and being able
to appreciate this diversity. Akram has a hard time seeing
the good of the entire group rather than her individual
needs. . . .
responded to the 2015 Appraisal on September 4, 2015,
stating, in part: “I [k]now that I am not perfect but I
will listen to critisem [sic] and will do my best to grow. .
. . I need to get a day shift position to match my family
need that I feel stress and be able to bring out my best for
patients and who I work with them.” Id. at 11.
Also on September 4, 2015, Vaziri electronically signed the
Appraisal, acknowledging that she had read the review and
discussed it with her supervisor, Preston. Id.
October 23, 2015, as a result of Vaziri's “needs
improvement” rating, Vaziri was placed on a Performance
Improvement Plan (“PIP”). ECF 24-3, ¶¶
12-13; ECF 24-6 (PIP). In a meeting that same day, Preston,
Vaziri, and Human Resources Business Partner Gina Dembeck
discussed the PIP, and each signed and dated each page of the
plan. ECF 24-6 at 1-4. The PIP explains, in relevant part,
id. at 1:
This plan is an opportunity for the employee to make
improvements to be able to fully meet the duties and
responsibilities of the job. Immediate and sustained
improvement is expected and failure to do so may result in
further disciplinary action, up to and including termination
also describes particular areas in which Vaziri was regarded
as deficient in her performance and for which she needed
improvement. Id. at 1-3. It provides, id.
Lack of proactive presence on the units, staff does not
perceive Akram as a resource or an advisor for them.
Lack of service as an internal expert resource. Akram herself
stated that she does not have the ability to perform as a
The staff perceives that Akram is not able to navigate the
[Electronic Medical Record (“EMR”)] to be able to
assist the staff in such. . . .
Argumentative with other supervisors.
At times, displays an accusatory tone. . . .
Limited understanding of directions and guidance without
repeated attempts of communication.
the PIP, Preston instructed Vaziri to email Carol Forrest,
Manager of the High Intensity Care Unit (“HICU”),
to schedule dates on which she would work in the HICU
“to increase her comfort level with critical patients,
” ECF 24-3, ¶ 14; to attend a leadership class on
“Effective Communication or Connecting with Others,
” prior to November 30, 2015, id. ¶ 15;
to speak directly with a co-worker about any disagreement,
id.; and to send Preston an email prior to October
26, 2015, with her availability for progress report meetings.
Id. In addition, Preston directed Vaziri to meet
with Rebecca Shafer, the Clinical Resource Nurse, or attend a
“Cerner Navigation” training prior to November 1,
2015. Id. Cerner is the “[EMR] database that
Levindale began using in February 2015.” Id.
email to Preston and Dembeck on November 6, 2015 (ECF 28-13),
Vaziri stated that she signed the PIP “because [she]
felt pressure from [Preston] and Ms. Gina Dembeck.”
Id. at 1. Further, she stated that her signature
“d[id] not mean that [she] agreed with [Preston] on
what you [all] are accusing me of.” Id.
Vaziri claims she was placed on the PIP “without any
clear explanation.” ECF 20 at 5. She alleges that the
PIP “was not clear and the deadline was not realistic
and not coordinated based on [her] schedule.”
Id. Further, Preston, who “was new in her
position” as Director of Nursing, “did not have
any chance to directly observe [Vaziri] or work with
[Vaziri], ” and “[Preston's] evaluation was
based on hearsay, not actual facts and evidence.”
Id. at 6. Moreover, Preston “did not come up
with evidence and date[s] and incident reports or any visual
observation of [Vaziri's] performance, ”
id., and “questions that [Vaziri] asked
[Preston] were not answered properly.” Id. at
November 4, 2015, Preston discussed with Vaziri “her
lack of progress on many of the PIP tasks and sent her an
e-mail following [the] conversation.” ECF 24-3, ¶
17. Although Vaziri had completed a leadership class,
“at least three other significant goals had not been
met.” Id. In an email of the same date (ECF
24-7), Preston explained to Vaziri, in relevant part,
[Y]ou were suppose[d] to email Carol Forrest with dates 4
hours each week that you were able to come to the HICU to do
share time. This was suppose[d] to be sent out by Monday
October 26, 2015, but has yet to be sent to her. . . .
You were also suppose[d] to email with times that you are
able to meet once a week to go over the progress of your PIP
by October 26, 2015, but I have not received meeting dates
from you. This is the second week of your PIP and I have not
met with you.
email, Preston recognized that plaintiff had “been
going back and forth with times and dates” in regard to
Cerner Navigation. Id. And, she noted that plaintiff
had completed the leadership class. Id.
Nevertheless, Preston warned Vaziri, id.:
I want to reiterate our conversation when reviewing the PIP.
Remember that this action plan was put in place to assist you
with being successful as a leader in our organization. It is
extremely important that you complete the tasks above in a
timely manner. Failure to complete them may result in
termination . . . .
Preston's warning, “Vaziri waited until November 8,
2015 - almost two weeks after [the] agreed-upon deadline - to
send the e-mail to Carol Forrest.” ECF 24-3, ¶ 18.
And, Vaziri failed to send the email Preston requested with
proposed dates on which they ...