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Goldstein v. University of Maryland

United States District Court, D. Maryland

September 17, 2019

CARLY GOLDSTEIN
v.
THE UNIVERSITY OF MARYLAND, et al

          MEMORANDUM

          CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE

         The 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").[1] 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 reasons.

         FACTUAL AND PROCEDURAL HISTORY

         The 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.

         In 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.

         In her 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, [2] 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, 84-87.

         Ms. 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.

         Ms. 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 ¶¶ 260-65.

         Ms. 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.

         Sometime 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. at¶¶410, 412.

         On 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.[3]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.

         Ms. 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 ¶ 475.

         On 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 ¶ 119.

         The 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.

         In 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.

         On November 30, 2018, Ms. Goldstein filed her amended complaint, naming as defendants the University of Maryland School of Medicine, [4] University of Maryland, Baltimore, and the Baltimore Research and Education Foundation, Inc.[5] 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.[6]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 work environment.

         STANDARD OF REVIEW

         To 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)).

         ANALYSIS

         The 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.[7] 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. Joint Employer

         In 2015, the Fourth Circuit recognized that a single employee may have multiple employers in the Title VII context.[8]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).

         In 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 employee discipline;
(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 ...

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