United States District Court, D. Maryland
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE
plaintiff, Carly Goldstein, worked with employees of the
defendants, the University of Maryland and its School of
Medicine (collectively, the "University"), during
which time she claims she was subjected to repeated sexual
harassment by the University's Dr. Robert Crawford. On
August 2, 2018, she filed a complaint in this court against
the University and Baltimore Research and Education
Foundation ("BREF"). The University has filed a motion
to dismiss for failure to state a claim, or, alternatively, a
motion for summary judgment, which has been fully briefed.
The court will treat the motion as a motion to dismiss and
will deny it in part and grant it in part for the following
AND PROCEDURAL HISTORY
parties have a lengthy history, only the relevant portions of
which will be recited here. Because this involves the
University's motion to dismiss, and because there has
been no discovery, the court will assume the factual
allegations in the complaint are true.
2012, Ms. Goldstein began working at the University's
medical center as a research intern, and later became a paid
intern who conducted academic research primarily at the
Baltimore VA Medical Center but also on University property.
Am. Compl., ECF 22 ¶¶ 17-18. In 2014, Dr. Brajesh
Lal, who held dual appointments as the University's
Director of Clinical Research for the Vascular Division and
Chief of Vascular Surgery at the Baltimore VA Medical Center,
asked Ms. Goldstein to apply for a University research
assistant position that was to be supervised by Melita
Braganza, a University employee assigned to the VA.
Id. at ¶¶ 13, 21-22, 30, 59. Ms. Goldstein
applied, but was not hired, and the vacancy was cancelled.
Id. at ¶ 30; ECF 30-5. Instead, Dr. Lal and Ms.
Braganza told Ms. Goldstein that they had money in the
University's BREF account, so they were going to hire Ms.
Goldstein through BREF. ECF 22 ¶ 31. Ms. Goldstein
applied to BREF, which hired her via an offer letter signed
by Dr. Lal. Id. at ¶¶ 32-34.
BREF position, Ms. Goldstein coordinated research-related
activities for the University, and worked under the
supervision of Melita Braganza, Dr. Lal, and Dr. Robert
Crawford, a vascular surgeon who held appointments at both
the university and the VA. Id. at ¶¶ 14,
39, 41-43, 59. She was also assigned projects by Dr. Shahab
Toursavadkohi, another vascular surgeon with dual University
and VA appointments. Id. at ¶ 66. According to
Ms. Goldstein, her responsibilities were identical to the
responsibilities she would have had if the University had
hired her, and her work focused on University projects.
Id. at ¶¶ 38, 43. Specifically, she spent
approximately 50% of her time working on the University's
NTA3CT study, 10% of her time dedicated to a separate
University study, another 10% on Dr. Toursavadkohi's
studies startup work, 5% on University administrative work,
and 25% on VA studies. Id. at ¶¶ 43,
45-46. Ms. Goldstein conducted the vast majority of her work
at the VA using VA facilities. Id. at ¶¶
4, 67. At one point, Dr. Rajabrata Sarkar, the Chief of
Vascular Surgery for the University of Maryland Medical
Center,  tasked Ms. Goldstein with recruiting
another research assistant to be paid by the University to do
work similar to Ms. Goldstein's for similar pay, and whom
Ms. Goldstein trained. Id. at ¶¶ 66,
Goldstein alleges that, from 2014 to at least October 2016,
she was sexually harassed by Dr. Crawford. Id. at
¶¶ 150, 493. Dr. Crawford continuously made sexual
comments to Ms. Goldstein both during and outside of work,
and repeatedly texted her, including one text message
exchange where he said that he was going to kidnap her, adopt
her, marry her, clone her, and eat her; E.g. Id. at
¶¶ 150, 169-70, 225-27, 230-31, 328-29. Ms.
Goldstein alleges that Dr. Crawford engaged in quid pro
quo exchanges of his cooperation in completing work
tasks for Ms. Goldstein with Ms. Goldstein's agreement to
socialize with him, e.g. Id. at ¶¶ 160,
212, 305-07, despite Ms. Goldstein stating she only wanted to
be professional friends, id. at ¶ 165.
Additionally, Ms. Goldstein claims on several occasions Dr.
Crawford touched her against her will. For example, on July
24, 2015, Dr. Crawford went to Ms. Goldstein's
brother's house, where he tried to kiss her and reached
his hand down her shirt, leading Ms. Goldstein to push him
away and telling him to leave. Id. at ¶¶
218-23. Later, in November 2015, at The Brewer's Art, a
restaurant in Baltimore, Dr. Crawford put his arm around Ms.
Goldstein, touched her legs and thigh, and kissed her against
her will despite Ms. Goldstein repeatedly telling him to
stop. Id. at ¶¶ 234, 236. Once Ms.
Goldstein began to cry and beg for Dr. Crawford to stop, he
became angry, telling her to relax, grow up, and that she was
acting like a child, and complaining that Ms. Goldstein had
not turned down her previous boyfriend. Id. at
¶¶ 237-40. After Ms. Goldstein would refuse his
advances, she alleges Dr. Crawford would use his role to
prevent Ms. Goldstein from completing her work, such as by
failing to order CT scans and blood work Ms. Goldstein needed
for her studies. E.g. Id. at ¶¶ 293-94,
407-08. Ms. Goldstein claims this constituted a tangible
adverse employment action. Id. at ¶ 408.
Goldstein alleges that she complained about Dr.
Crawford's harassment multiple times to Dr.
Toursavadkohi, as well as Dr. Sarkar, who supervised Dr.
Crawford. Id. at ¶¶ 12, 16. For example,
in summer 2015, Ms. Goldstein told Dr. Toursavadkohi that Dr.
Crawford was "ridiculous and won't leave me
alone." Id. ¶ 203. In November 2015, after
the Brewer's Art incident described above, a fellow
vascular surgeon informed Dr. Toursavadkohi of the incident.
Id. at ¶ 244. Dr. Toursavadkohi later met with
Ms. Goldstein, where they discussed the Brewer's Art
incident and Dr. Crawford's harassing behavior in the
workplace; Dr. Toursavadkohi informed Ms. Goldstein that Dr.
Crawford requested that she be removed from the division.
Id. at ¶¶ 247-48, 251-54. Dr.
Toursavadkohi agreed that the request to remove Ms. Goldstein
from the division was retaliation for Ms. Goldstein's
rejecting Dr. Crawford's sexual advances. Id. at
¶ 254. Dr. Toursavadkohi said that he would "handle
it" and he would "take care of Crawford, he will
not do this again." Id. at ¶ 256. At some
point after, Dr. Crawford was ordered to apologize to Ms.
Goldstein, but instead scolded her for overreacting and
complaining to Dr. Toursavadkohi, and demanded she rescind
her sexual harassment complaints against him. Id. at
Goldstein also complained to Dr. Sarkar about Dr.
Crawford's treatment. On January 19, 2016, Ms. Goldstein
ran into Dr. Sarkar at an Au Bon Pain restaurant and told him
about the harassment. Id. at ¶ 295. In or
around March 2016, Ms. Goldstein again raised concerns about
Dr. Crawford's treatment of her with Dr. Sarkar.
Id. at ¶ 304. Dr. Sarkar suggested that Ms.
Goldstein copy him on any emails from the study's sponsor
if Dr. Crawford did not complete his duties. Id. at
¶ 305. However, when she did so, Dr. Crawford called Ms.
Goldstein and screamed at her for copying Dr. Sarkar on an
email. Id. at ¶ 313. Ms. Goldstein also brought
up Dr. Crawford's treatment of her to Dr. Sarkar on or
about June 7, 2016, when she was asked to weigh in on Dr.
Crawford's potential promotion. Id. at
¶¶ 334-35. Ms. Goldstein claims that, at some point
in March 2016, Dr. Sarkar said to an unidentified person that
Dr. Crawford "did something terrible to that girl in
research and it's damaged his relationship with
Tour[savadkohi]. Tour[savadkohi] is mad at him."
Id. at ¶ 311. Neither Dr. Sarkar nor Dr.
Toursavadkohi reported any of these incidents to the Title IX
coordinator. E.g. id at ¶¶ 353, 397.
in August 2016, Dr. Sarkar met with Ms. Goldstein and
informed her that funding for Dr. Lal was ending, and that
the University therefore might reduce her to part-time
status. Id. at ¶ 409. Ms. Goldstein did not
believe Dr. Sarkar's claim regarding the funding, because
most of her work was funded by Dr. Crawford's research,
and considered this retaliation. Id.
October 27, 2016, Dr. Crawford was ordered to have no contact
with Ms. Goldstein. ECF 22 ¶ 421. The University's
Title IX office received a demand letter from Ms.
Goldstein's prior counsel on November 3, 2016,
id. at ¶ 441, which outlined Dr. Crawford's
harassment of Ms. Goldstein beginning in 2015 with
contributing facts from as early as 2014, id. at
¶¶ 106-08.Dr. Toursavadkohi, BREF's Dave
Johnson, and the Title IX office's Tricia O'Neal
forbade Ms. Goldstein from talking to third parties about the
no-contact order. Id. at ¶¶ 425-27. This,
in turn, made it difficult for Ms. Goldstein to communicate
with sponsors of the study, an important part of her work,
and also meant she was unable to communicate with individuals
from whom she had expected to receive recommendation letters
for graduate school. Id. at ¶¶ 430, 432.
Ms. Goldstein claims that this constituted a tangible adverse
employment action. Id. at ¶ 431.
Goldstein believes that Dr. Crawford was notified about her
sexual harassment complaint to the Title IX office on
November 15, 2016. Id. at ¶ 443. On January 11,
2017, Ms. Goldstein notified the Title IX office that she
heard from a trainee that Dr. Crawford wanted to hire a
private investigator to follow Ms. Goldstein. Id. at
¶ 454. Ms. Goldstein also notified the Title IX office
that Dr. Crawford had contacted a product representative she
had previously dated "to request that the representative
falsely claim Goldstein would get drunk and go home with
random men." Id. at ¶ 456. In April 2017,
Ms. Goldstein resigned from her position. Id. at
February 3, 2017, Ms. Goldstein filed charges of
discrimination with the EEOC against the University of
Maryland School of Medicine. Id. at ¶ 468; ECF
3 0-3. The charge alleged sexual harassment beginning in
2016. ECF 22 ¶ 106. In addition to her charge, Ms.
Goldstein provided the EEOC investigator with a copy of the
November 3, 2016, demand letter. Id. at ¶ 469.
Also, prior to signing the final charge, Ms. Goldstein
informed the investigator in person that Dr. Crawford's
harassment had begun prior to the period defined in the
charging document. Id. at ¶ 470. On July 27,
2018, the EEOC issued a right to sue notice. Id. at
Title IX office investigated Ms. Goldstein's allegations,
and on June 5, 2017, the University issued its findings,
concluding that no violations of hospital policy had
occurred. Id. at ¶ 467. On June 9, 2017, the
University informed Ms. Goldstein that it concluded, by a
preponderance of the evidence, that Dr. Crawford had not
subjected Ms. Goldstein to unwelcome sexual harassment,
instead concluding that Dr. Crawford and Ms. Goldstein had
engaged in a personal relationship that extended beyond the
workplace and involved Dr. Crawford exercising poor judgment
for someone in his position. Id. at ¶¶
478-79. To that end, the University had interpreted Ms.
Goldstein's text messages with Dr. Crawford, which she
claims were sent to placate him, as evidence of her
willingness to engage in the relationship with him.
Id. at ¶ 481.
addition to her allegations that Dr. Crawford had sexually
discriminated against her, Ms. Goldstein also alleges in her
amended complaint that Dr. Lijo Panghat, a post-doctoral
research fellow at the University, harassed her in October
2015. Id. at ¶¶ 232, 266. Ms. Goldstein
reported her complaints to Ms. Braganza and Dr. Lal in
December 2015, id. at ¶¶ 266-69, and to
Dr. Toursavadkohi at an unidentified time, id. at
¶ 272. On or around December 11, 2015, Ms. Goldstein
reported Dr. Panghat's behavior to BREF and VA officials,
id. at ¶ 274, and Dr. Panghat was removed from
his fellowship shortly thereafter, id. at ¶
277. Ms. Goldstein alleges that the University exhibited
deliberate indifference to her claims against Dr. Panghat by
failing to report her claims to the Title IX coordinator.
Id. at ¶ 275. She also alleges that Ms.
Braganza and Dr. Lal reprimanded her for reporting Dr.
Panghat's behavior, and that Dr. Lal spread sexual rumors
about Ms. Goldstein after the incident. Id. at
¶¶ 276, 526-27.
November 30, 2018, Ms. Goldstein filed her amended complaint,
naming as defendants the University of Maryland School of
Medicine,  University of Maryland, Baltimore,
and the Baltimore Research and Education Foundation,
The amended complaint alleged that the University had (1)
permitted unlawful sexual discrimination and sexual
harassment and imposed a hostile work environment; and (2)
unlawfully retaliated against her and imposed a retaliatory
hostile work environment, all in violation of Title IX, 20
U.S.C. §§ 1681-1688, Title VII, 42 U.S.C. §
2000e et seq., and the Maryland Fair Employment
Practices Act ("FEPA"), Md. Code Ann., State
Gov't § 20-1001 et seq.Generally, Ms.
Goldstein claims that the University was deliberately
indifferent to her repeated complaints regarding the sexual
harassment and discrimination she routinely experienced from
Dr. Crawford, and that it permitted Dr. Crawford to retaliate
against her for reporting such treatment, creating a hostile
survive a motion to dismiss, the factual allegations of a
complaint "must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact)." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). "To
satisfy this standard, a plaintiff need not
'forecast' evidence sufficient to prove the elements
of the claim. However, the complaint must allege sufficient
facts to establish those elements." Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation
omitted). "Thus, while a plaintiff does not need to
demonstrate in a complaint that the right to relief is
'probable, the complaint must advance the plaintiffs
claim 'across the line from conceivable to
plausible."' Id. (quoting Twombly,
550 U.S. at 570). Additionally, although courts "must
view the facts alleged in the light most favorable to the
plaintiff," they "will not accept 'legal
conclusions couched as facts or unwarranted inferences,
unreasonable conclusions, or arguments'" in deciding
whether a case should survive a motion to dismiss. U.S.
ex rel. Nathan v. Takeda Pharm. North Am., Inc., 707
F.3d 451, 455 (4th Cir. 2013) (quoting Wag More Dogs, LLC
v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)).
University challenges Ms. Goldstein's complaint on
several grounds. First and foremost, it claims that the court
should dismiss Ms. Goldstein's complaint entirely because
the University was not Ms. Goldstein's employer during
the alleged period of discrimination, harassment, and
retaliation. The University alleges Ms. Goldstein was
employed by BREF, and, when she was supervised by Dr.
Crawford and Dr. Lal, they were acting pursuant to their VA
rather than their University appointments. Mem. of Law in
Supp. of Def.'s Mot. to Dismiss, ECF 30-1 at 4, 14, 17.
Regarding Ms. Goldstein's claims of a hostile work
environment, the University contends that the court lacks
subject matter jurisdiction to rule on the claims due to Ms.
Goldstein's failure to exhaust administrative
remedies. The University also claims it did
not exhibit deliberate indifference to Ms. Goldstein's
complaints. Regarding the retaliation claims, the University
argues that over half of Ms. Goldstein's claims of
retaliation are actually quid pro quo claims, and
the remaining half (1) are time barred, and (2) fail to
allege sufficiently all of the elements for a prima facie
case of retaliation. The court will address these arguments
in the order in which the University raised them, a.
2015, the Fourth Circuit recognized that a single employee
may have multiple employers in the Title VII context.In
Butler v. Drive Auto. Industr. of Am., Inc., the
Fourth Circuit expressly adopted the joint employer doctrine,
explaining that when "one employer while contracting in
good faith with an otherwise independent company, has
retained for itself sufficient control of the terms and
conditions of employment of the employees who are employed by
the other employer[, ]" both the employer and the
otherwise independent company are joint employers of such
employees. 793 F.3d 404, 408-09 (4th Cir. 2015) (internal
citation and quotation marks omitted). In such a situation,
the Fourth Circuit held that a joint employer could be found
liable under Title VII to prevent employers "who
effectively employ a worker from evading liability by hiding
behind another entity, such as a staffing agency."
Id. at 410 (internal citation and quotation marks
omitted). Thus, "[g]iven Title VII's remedial
intent, employers should not be able to avoid Title VII by
affixing a label to a person that does not capture the
substance of the employment relationship." Id.
(internal citation and quotation marks omitted).
adopting the hybrid test for joint employer (rather than the
economic realities test or the control test employed by some
other circuits, id. at 410-14), the Fourth Circuit
set forth nine factors to be used in determining whether an
entity qualifies as a joint employer. Id. at 414.
The factors are as follows:
(1) authority to hire and fire the individual;
(2) day-to-day supervision of the individual, including
(3) whether the putative employer furnishes the equipment
used and the place of work;
(4) possession of and responsibility over the
individual's employment records, including payroll,
insurance, and taxes;
(5) the length of time during which the individual has worked
for the putative employer;
(6) whether the putative employer provides the individual
with formal or ...