United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
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"). 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. 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.
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. 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
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").
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.
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."
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
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") 10.21.03.03A
(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 10.21.03.03B.
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.
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.
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.
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
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.
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.
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 
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.
Okusami sent correspondence to Cullen and Dr. Millis on
August 12, 2015, stating id. ¶ 12 (alterations
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
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
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
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
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
In conclusion, please provide the DHMH policy you have cited
as authority for restricting my practice of Psychiatry.
[signature appears in original]
Taiwo Okusami, M.D.
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.
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
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."
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
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.
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."
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.
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.
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.
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.
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, ¶
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
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
[signature appears in the original]
John G. Cullen
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.
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.
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
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)).
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.