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Okusami v. Maryland Department of Health And Mental Hygiene

United States District Court, D. Maryland

February 28, 2019

TAIWO OKUSAMI, M.D., Plaintiff,



         In this employment discrimination case, plaintiff Taiwo Okusami, M.D., an African-American psychiatrist, has sued his former employer, the Maryland Department of Health and Mental Hygiene, Thomas B. Finan Center (the "Department" or "DHMH").[1] ECF 1 (the "Complaint"). He asserts three claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"): discrimination on the basis of race (Count I); harassment and hostile work environment (Count II); and retaliation (Count III). ECF 1, ¶¶ 21-37.[2] In addition, in Count IV, he asserts a claim for wrongful discharge under Maryland law. Id. ¶¶ 38-41. Plaintiff seeks attorney's fee's, costs, and monetary relief, including back pay and front pay. See id.

         The Department has moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6), for lack of subject matter jurisdiction under the Eleventh Amendment, and for failure to state a claim. The motion is supported by a memorandum of law (ECF 9-1) (collectively, the "Motion") and two exhibits. ECF 9-2 - ECF 9-3.[3] In particular, the Department contends that dismissal of Count IV is warranted, because the Eleventh Amendment bars plaintiffs wrongful termination claim in federal court. ECF 9-1 at 6-8. In addition, it asserts that the remaining claims (Counts I, II, and III) fail to state a claim. Id. at 8-17. Alternatively, the Department argues that the parties executed a "Personal Services Contract" (ECF 9-2, the "Contract"), by which the "parties agreed that Maryland's State courts, and not federal court, have exclusive jurisdiction to hear Dr. Okusami's claims arising related [sic] to his employment with the State of Maryland." Id. at 17.

         Plaintiff has filed an opposition to the Motion (ECF 12), supported by a memorandum of law (ECF 12-1) (the "Opposition") and several exhibits. ECF 12-3 - ECF 12-6. Defendant has replied. ECF 13 (the "Reply").

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion (ECF 9) as to Counts II, III, and IV. But, I shall deny the Motion as to Count I.

         I. Factual Background[4]

         The Department "is a state agency that regulates health care providers, facilities, and organizations, and manages direct services to patients where appropriate. ECF 1, ¶ 2. It "has four major divisions - Public Health Services, Behavioral Health, Developmental Disabilities, and Health Care Financing." Id. Also, the Department "has 20 boards that license and regulate health care professionals[, ] various commissions that issue grants, and research and make recommendations on issues that affect Maryland's health care delivery system." Id.

         The Thomas B. Finan Center (the "Center") is "a multi-purpose psychiatric facility operating 88 beds" and "a primary inpatient component" of the Department. Id. The Center admits patients pursuant to a commitment order after a finding in criminal court that the defendant is either not competent to stand trial or is found not criminally responsible for the crimes committed. See Md. Code (2015 Repl. Vol., 2018 Supp.), §§ 10-701 et seq. of the Health-General Article ("H.G.").

         Maryland law tasks the Center with preparing "a written plan of treatment" for individuals at the Center, commonly referred to as an Individual Treatment Plan ("ITP"). H.G. § 10-706(a)(1). The ITP "is a comprehensive and thoughtfully written plan based on an initial diagnostic impression and an overall evaluation of the patient's specific needs and problems." Code of Maryland Regulations ("COMAR") (defining the content and nature of ITPs). Of relevance here, the ITP is "developed by members of the mental health professional treatment team who are directly involved in the patient's care." COMAR

         Dr. Okusami has extensive experience in the field of psychiatry, and is licensed in both Maryland and Virginia. ECF 1, ¶ 1. At the relevant time, he held certifications in General Psychiatry and Child/Adolescent Psychiatry from the American Board of Psychiatry and Neurology. Id.

         From April 2011 through November 1, 2016, plaintiff was employed by the Department as a Staff Psychiatrist at the Center. Id.; ECF 10-4 ("Department Statement Position") at 6. As a "Staff Psychiatrist," plaintiff s duties included "evaluating and treating patients with various mental illnesses." Id. "His contract was reviewed for renewal on an annual basis." ECF 10-4 at 6.

         On or about July 1, 2016, the parties entered into a Personal Services Contract with the Department, for the period of July 1, 2016, through June 30, 2017. ECF 1, ¶ 1; ECF 9-2. Although plaintiff was "a contractual employee," pursuant to Md. Code (2015 Repl. Vol., 2018 Supp.) §§ 13-101 et seq. of the State Personnel and Pensions Article ("S.P.P."), the Contract "establishe[d] an employer-employee relationship" between the Center and Dr. Okusami. ECF 9-2 at 1. The Contract provided, among other things, that Dr. Okusami "was to be paid Si20.00 per hour" based on "a regular workweek consisting of 40 hours." ECF 1, ¶ 9; ECF 9-2 at 1. The total amount of compensation for the term "was not to exceed $249, 600.00." Id.

         At the Center, "Dr. Okusami was responsible for the operations of a facility," called Cottage 1. M¶ 8. The facility "provided short-term housing for its residents with twenty-two beds and [was] staffed with a nursing assistant, psychologists, and [a] social worker, all of whom reported to Dr. Okusami." Id. His duties "included, in part, performing mental health evaluations of mentally ill patients accused of crimes to make a determination of their mental state and fitness to attend trial." Id.

         Until July 8, 2016, Dr. Okusami was supervised by Dr. David Millis, who was then the Medical Director of the Center. ECF 1, ¶ 9. Dr. Millis resigned as of July 8, 2016. Id. Thereafter, from July 9, 2016, until November 1, 2016, John Cullen, the Chief Executive Officer of the Center, served as plaintiffs supervisor. Id.

         Dr. Okusami claims that in 2015 he "began to be harassed" by Dr. Millis and Cullen, both of whom are Caucasian. Id. ¶ 10. "Specifically, in March 2015, Dr. Okusami was subpoenaed to testify at trial regarding his findings from examining a patient." Id. However, he "was not compensated" for the time he spent at the trial, even though two of his Caucasian coworkers, Mary Lou Perkins and Janet Hendershot, were compensated for such time. Id.[5]

         Perkins, an LCSW and forensic coordinator, and Hendershot, the Forensic Psychology Chief, "were both permanent, state government employees." Id. However, similar to plaintiff, they "interacted with and treated patients" at the Center "for competency and criminal responsibility evaluations"; they were members of the Center's "forensic evaluation team"; and they testified "on behalf of the patients that [sic] were under their care and treatment." Id. Over the course of Dr. Okusami's employment at the Center, he "testified on more than ten (10) separate occasions on behalf of various patients regarding the methods, findings, and conclusions in forensic reports prepared by [] Hendershot." Id.

         On several occasions between March and August 2015, Cullen and Dr. Millis purportedly "ordered Dr. Okusami to stop performing and documenting his examinations with thoroughness and candor because his medical opinions tended to frequently conflict with the medical opinions of the forensic evaluators." Id. ¶ 11. In plaintiffs words, "Cullen and Dr. Millis expressed a preference to prescribe patients medication which Dr. Okusami only viewed as an option of medical necessity if the circumstances warranted prescription medications given the ... propensity for addiction to psychotropic drugs." Id.

         Dr. Okusami sent correspondence to Cullen and Dr. Millis on August 12, 2015, stating id. ¶ 12 (alterations in original):

         Dear Gentlemen:

I have been called to 2 meetings with you regarding my role as a psychiatrist. At both meetings, the last was on 8/11/15, you again informed me that DHMH's policy has restriction on my role as a psychiatrist: specifically that I cannot evaluate a patient's cognitive state in regards to the alleged crime they are charged with AND I cannot document my professional opinion with regards to my findings. At both meetings you threatened to terminate my employment if I did not comply.
As I understand the duties of a Physician/Psychiatrist as licensed by the Board of Medicine, as regulated by the AMA and the APA, there is no restriction to a Psychiatrist's duty to evaluate a patient and that evaluation includes taking all elements of stressors (and legal issues are stressors) that may affect the patient's mental wellbeing or illness.
I am also required by law to keep an accurate record of my treatment recommendations for each patient I evaluate.
Please provide me the DHMH policy that limits my function as a Psychiatrist so I understand the rational [sic].
These issues arose because in the course of my evaluating patients I have documented my opinions which apparently did not conform to the conclusion of the Forensic evaluators.
As I under [sic] the responsibility of Forensic evaluation, the evaluator reviews all available medical records on the patient, interviews the patient and then write [sic] an opinion on whatever question the Court was asking. The evaluator's responsibility is to make a coherent, factual report. The evaluator is not bound by any opinion I, as an Attending, may have written about the patient being evaluated.
I do not believe that I because I am a State employee requires me to give up medical responsibilities under the law; to do so will be a violation of the Hippocratic oath: to do no harm. To withhold a reasoned psychiatric opinion on a patient I have duly evaluated will be a violation of that oath.
The law requires that I have a patient-doctor relationship with any patient under my care, irrespective of how the patients are referred, and that includes a duty to offer the patient my treatment recommendation and is not limited to prescribing medication. It also includes psychotherapy during which I can offer the patient my opinion on how the mental illness may or may not be impairing the ability to understand the legal stressors he/she maybe facing and address the ability to understand all the necessary components involve [sic] in resolution of the stressor.
Now, what you are requiring of me, if confirmed by DHMH's policy, is essentially interfering with my duty as a Psychiatrist, which will also be a violation of the duties enumerated in the Medical Bylaws.
The argument that because I have been subpoenaed by the Defense Attorney and that my testimony which will be contrary to the Forensic opinion of DHMH's appointed evaluator will make the Hospital look foolish I do not find [to have] merit. The Hospital does not employ professionals with monolithic views. On the contrary it will show that the Hospital [is] independent and not an arm of the Justice Dept. The role of mental health professionals is to provide an opinion to help the Courts understand the role of mental illness, if any, in the deliberations Judges have to make.
The threat to any professional who may have a dissenting opinion is not warranted, especially in a Mental Health Agency.
In conclusion, please provide the DHMH policy you have cited as authority for restricting my practice of Psychiatry.
Thank you,
[signature appears in original]
Taiwo Okusami, M.D.

         On October 2, 2015, Dr. Okusami was again subpoenaed to testify at a patient's competency hearing. ECF 1, ¶ 13. Soon after, he submitted a request to Dr. Millis "to be compensated for his . . . professional time spent testifying at the competency hearing." Id. Dr. Okusami was allegedly "told not to attend the hearing, but that if he chose to go he would have to 'go on his own time.'" Id. Dr. Okusami decided to attend the hearing, because he believed that he "would be subject to legal and financial consequences of not appearing pursuant to the subpoena[.]" Id. To plaintiffs knowledge, Perkins and Hendershot "continued to receive compensation for their appearance to testify in response to issued subpoenas." Id.

         From March 2016 until November 2016, Dr. Millis repeatedly told plaintiff that Cullen "was aware of staff complaints" regarding Dr. Okusami. ECF 1, ¶ 14. However, despite Dr. Okusami's requests, Dr. Millis "would never present any formal complaints" to plaintiff. Id.

         During that time, Cullen allegedly "instructed a social worker" to disregard Dr. Okusami's request to set up aftercare services for a patient. And, with respect to another patient under Dr. Okusami's care, Cullen "instructed the nursing staff to disregard Plaintiffs instructions for the use of physical and chemical restraints ...." Id. In addition, with regard to "a release hearing," Cullen replaced plaintiff with Dr. Millis, who "previously had only marginal contact with the patient." Id. The Complaint alleges: "None of Plaintiff Okusami's similarly situated Caucasian peers, including Dr. Hendershot, were ever subjected to such treatment at the hands of Mr. Cullen." Id.

         Also, until the time of Dr. Okusami's termination, Cullen instructed Dr. Okusami "not to use the word 'competent' in the medical records of patients which [sic] Plaintiff was treating." Id. Plaintiff alleges that none of his "similarly situated Caucasian peers, including Dr. Hendershot, were subject to such baseless criticism of their subjective medical notations." Id.

         In October 2016, one of Dr. Okusami's patients "filed a petition to be released to another facility which offered less aggressive treatment and therapy . . . ." Id. ¶ 15. Plaintiff claims that he "supported the patient's request because the patient had not exhibited any signs or symptoms of any mental illness." Id. Further, Dr. Okusami "had documented that the patient had already been at the Hospital for at least five months" when the patient "began to indicate an absence of any signs or symptoms of mental illness[.]" Id. In addition, "the patient had been maintained on the same medication dosage during his tenure at the facility." Id.

         However, the Department "and its staff. . . were not supportive of the patient's request." Id. ¶ 16. Two weeks prior to a hearing regarding the patient's request, Hendershot and Perkins approached plaintiff and "were persistent that Dr. Okusami refute the patient's request to be released." ECF 1, ¶ 16. They allegedly told plaintiff that '"the patient has not been in the hospital long enough.'" Id. Dr. Okusami "responded that a recommendation regarding patient care should be based on a patient's mental state and not on how long the patient stayed in the facility, especially since the patient in this instance was exercising the rights afforded to him under state law." Id.

         On October 4, 2016, Dr. Okusami attended a meeting with members of the "forensic medical evaluation treatment team," including Cullen, Dr. Millis, Dr. Thomas Grieger, Dr. Sherry Passarell, and Dr. Joel Hassman. Id. ¶ 17. During the meeting, Cullen "scolded" plaintiff "in front of those in attendance, stating that the Plaintiffs 'opposition to the Hospital's position ma[de] the Hospital look bad[.]'" Id. Further, Cullen told Dr. Okusami that he was "'tired of [Dr. Okusami] testifying for patients when [his] opinion is different from the Hospital's position."' Id. (alterations in original). Cullen then "threatened [plaintiffs] employment, telling him 'Your position is jeopardized because you keep going against the hospital's position.'" Id.

         According to the Complaint, Dr. Oksami responded that he "was fulfilling his obligation under Maryland law by testifying on behalf of patients whom he treated, including the patient whose release was the subject of the . .. meeting." Id. ¶ 18. Further, Dr. Oksami stated that, "as the patient's psychiatrist, he would not deny the patient the benefit of his testimony" because he believed "it was in the best interest of the health and safety of the patient" and based on "a patient-doctor relationship." Id. Cullen then "responded by reiterating his verbal threats to Plaintiffs continued employment." Id.

         The patient's hearing was held on October 7, 2016, before an Administrative Law Judge ("ALJ"). Id. ¶ 19. Cullen was present, "despite not having been present at prior hearings" where )"Okusami provided medical testimony on behalf of patients." Id. At the request of the patient's lawyer, the ALJ "asked all those testifying to vacate the room." ECF 1, ¶ 19. However, Cullen remained after he told the ALJ: '"As CEO, I am here to observe.'" Id. Then, throughout the hearing, Cullen "continuously glared at Dr. Okusami in a threatening and intimidating manner." Id.

         After the hearing, Dr. Okusami "went on a previously planned vacation for one week." Id. ¶ 20. Upon plaintiffs return on October 17, 2016, "he was summoned to Mr. Cullen's office for [a] one-on-one meeting" Id. At the outset of the meeting, "Cullen demanded that Plaintiff 'resign based on [his] at will clause'" in the Contract. Id. (alteration in original). In response, "Dr. Okusami told Mr. Cullen that he had no intention of resigning" and maintained that "he had done nothing wrong." Id. Further, Dr. Okusami maintained that "all he has done is perform his legal duties imposed on him by Maryland law as a treating physician." Id.

         Cullen responded "that he did not have to give Plaintiff a reason for terminating Plaintiffs employment because he was at-will." Id. Cullen then provided plaintiff a letter, dated October 17, 2016, which stated, ECF 1, ¶ 20:

         Dear Dr. Okusami:

Pursuant to our Special Payments contract with you, the Center may terminate your contract without cause.
I have decided to terminate your contract effective November 1, 2016.
Please take the next two weeks to finish all of your charting and transitioning your patients to Dr. Passarell.
I would like to thank you for your 5 plus years here at the Center.
[signature appears in the original]
John G. Cullen

         Dr. Okusami was then "excused from Mr. Cullen's office and spent the following two weeks transitioning his patients per Mr. Cullen's directive." Id. At the time, "Dr. Okusami was 69 years old," and he claims that his termination "caused [him] substantial stress, depression, and anxiety." Id.

         On December 30, 2016, Dr. Okusami filed his Charge of Discrimination (the "Charge") with the United States Equal Opportunity Commission (the "EEOC"). Id. ¶ 4. He received a Notice of Right to Sue letter from the EEOC, dated May 1, 2018. Id. This suit followed on June 11, 2018.

         II. Legal Standard

         A. Rule 12(b)(1)

         The Department has moved to dismiss plaintiffs wrongful discharge claim (Count IV), pursuant to Fed.R.Civ.P. 12(b)(6), for lack of subject matter jurisdiction. It asserts that the claim is barred by sovereign immunity, pursuant to the Eleventh Amendment.

         Sovereign immunity is a jurisdictional bar. As the Fourth Circuit has said, '"sovereign immunity deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction."' Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (quoting Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009)).

         A motion to dismiss based on the Eleventh Amendment is sometimes considered under Rule 12(b)(1), rather than Rule 12(b)(6). See Abril v. Comm 'w of Va., 145 F.3d 182, 184 (4th Cir. 1998) (affirming the district court's dismissal of a claim barred by sovereign immunity under Rule 12(b)(1)); Strong v. Swaim-Stanley, WMN-12-cv-1924, 2012 WL 4058054 (D. Md. Sept. 13, 2012). Judge Roger Titus of this Court explained in Beckham v. National R.R. Passenger Corporation, 569 F.Supp.2d 542, 547 (D. Md. 2008) (internal citations omitted, alteration added):

[T]he Eleventh Amendment limits the ability of a federal district court to exercise its subject-matter jurisdiction over an action brought against a state or one of its entities. As such, although Eleventh Amendment immunity is not a "true limit" on this Court's subject matter jurisdiction, the Court concludes that it is more appropriate to consider this argument under Fed.R.Civ.P. 12(b)(1) ...

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