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Foster v. Genedx, Inc.

United States District Court, D. Maryland, Southern Division

September 30, 2019

KIESHA FOSTER, Plaintiff,
v.
GENEDX, INC., Defendant. Date Plaintiff Jubela Citations

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE

         Plaintiff Kiesha Foster alleges that Defendant GeneDx discriminated against her on the basis of her race and gender by compensating her less than her white male colleague and failing to promote her in violation of the Maryland Fair Employment Practices Act (“FEPA”), State Gov't Code, § 20-601 et. seq., the Montgomery County Code, § 27-19(a)(1), and 42 U.S.C. § 1981. Pending before the Court are Defendant's Motion to Strike, ECF No. 52, and Defendant's Motion for Summary Judgment, ECF No. 42. No. hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Defendant's Motion to Strike will be denied, and Defendant's Motion for Summary Judgment will be granted in part and denied in part.

         I. BACKGROUND[1]

         Defendant specializes in genetic testing for rare hereditary disorders. ECF No. 41-2 ¶ 3. Defendant's Accessions Department conducts intake for patient specimens. Id. ¶ 6. Accessioners are responsible for receiving packages from clients, opening and sorting them, entering information into Defendant's computer database, delivering paperwork to document management for scanning, and delivering samples for tissue culture and extraction for processing. Id.

         Plaintiff is an African-American female who began working for Defendant as an Accessioner on August 6, 2007 after graduating from college with a Bachelor of Science degree. ECF No. 62-1; ECF No.48-2 at 26.[2] Her starting salary was $28, 080. ECF No. 62-1. For some time, Plaintiff Foster worked under the supervision of Dr. Sherri Bale, the then President and Clinical Director. ECF No. 48-2 at 32-33.

         Having a scientific background is helpful to accomplishing an Accessioner's duties. ECF No. 48-1 ¶ 5. In certain cases, Accessioners need to understand and interpret clinical indicators to ensure that the requested testing is reasonable, which requires a basic understanding of biology and genetics. Id. The Accessions Department tends to hire candidates with four-year college degrees, and because of its “competitive selection process, ” by 2014 all Accessioners “had at least a college degree and the majority had a Bachelor of Science instead of a Bachelor of Arts degree” during the time relevant to Plaintiff's case. Id. ¶ 4. Although a scientific background is helpful to the Accessioner role, there are no legal requirements that Accessioners possess a college degree because the Accessions Department qualifies as a non-technical lab. ECF No. 41-2 ¶ 13; ECF No. 41-27 at 8:12-9:14.

         At the same time that Plaintiff joined the Accessions Department, Defendant hired Raymond Jubela as a receptionist earning $28, 000 per year. ECF No. 42-1. Mr. Jubela is a white male. Id. Mr. Jubela did not have a four-year college degree but attended courses at Montgomery College from 1988 through 1991. ECF No. 41-5 at 3. When Defendant hired him, he had started to take classes at Montgomery College again and was working towards an Associate of Arts degree. Id. Mr. Jubela had not taken any college-level science courses. ECF No. 48-6 at 42:17- 43:3. He also did not have prior work experience in any scientific field. ECF No. 41-5.

         Defendant included the following language in letters setting forth the terms of Plaintiff and Mr. Jubela's employment:

You will be provided an annual review between December 1 of the current calendar year and January 31 of the next following calendar year and considered for a salary increase based on that review. Any such salary increase will take effect the first payroll period after February 1st of the next following calendar year and includes only February payroll duties.

ECF No. 48-2 at 17; ECF No. 48-3 at 54. Consistent with this policy, in December 2007, Defendant approved Mr. Jubela for a salary increase to $32, 000, but that salary did not become effective until February 2008.[3] ECF No. 55 at 2. Defendant also increased Plaintiff's salary to $32, 000 effective February 2008. ECF No. 48-2.

         On September 2, 2008, Defendant promoted Mr. Jubela to Accessioner, the same position then held by Plaintiff. ECF No. 41-3 at 8:2-6. Although Mr. Jubela had received a stellar performance evaluation in February 2008, ECF No. 41-7, Plaintiff understood that Defendant transferred Mr. Jubela to the Accession department because it would limit his contact with clients since he lacked professionalism answering the phone. ECF No. 41-3 at 8:8-12. Although Mr. Jubela did not have a four-year college degree or a scientific background, Mr. Jubela's starting salary as an Accessioner was about $4, 000 higher in 2008 than Plaintiff's starting salary as an Accessioner had been in 2007. As of September 2, 2008, however, they were both earning $34, 000. ECF No. 62-3; ECF No. 42-2.

         For the 2008 performance period, Plaintiff and Mr. Jubela earned the same increase from $34, 000 to $37, 000. ECF No. 41-10; ECF No. 42-3. Dr. Bale, Plaintiff's then-supervisor, noted on her annual review that she was “focused, ” a “very hard worker, dependable, and a team player.” ECF No. 48-2 at 32. At some point around this time, Defendant promoted Plaintiff to Senior Accessioner. ECF No. 48-2 at 25.

         On October 17, 2009, Dr. Bale unofficially promoted Plaintiff and Mr. Jubela to co-supervisor positions, increasing their responsibilities and raising their salaries from $37, 000 to $40, 000. ECF No. 41-12; ECF No. 62-6. For the 2009 performance period, Plaintiff received all Successfully Meets Expectations ratings. ECF No. 62-1. Dr. Bale noted: “Kiesha has done a great job this year, taking on Sr. Accessioners responsibilities with the departure of her supervisor to grad school. She and Ray Jubela have divided the work well between them, and they continue to mentor the two 2 more junior employees in their department.” Id. at 5. Dr. Bale did not include any notes in the comment box labeled “List below any performance expectations/goals for the next rating period.” Id.

         Mr. Jubela earned two Exceeds Expectations and eleven Successfully Meets Expectations. ECF No. 41-16. Dr. Bale commented: “Ray has really taken on a new set of responsibilities in Accessioning. He is always the one I can depend on to take care of any issue that comes up or fix any mistake. He goes the extra mile in terms of putting in time and staying late as needed.” Id. at 5. She also wrote: “I would like to see Ray gain more knowledge of basic genetics principles, either through completion of an on-line learning program or taking a class at Montgomery College. I expect Ray to continue upward and take even more management responsibilities in the next 1-2 years.” Id.

         In conjunction with these performance reviews, Plaintiff received a five percent pay increase from $40, 000 to $42, 000, ECF No. 41-15, and Mr. Jubela received a ten percent increase from $40, 000 to $44, 000. ECF No. 42-5.

         As part of their unofficial supervisory duties, Dr. Bale expected Plaintiff and Mr. Jubela to handle difficult conversations with the Accessioners. See ECF No. 48-6 at 32:15-18. In June 2010, during one such conversation that included Plaintiff, Mr. Jubela, Accessioner Michelle Gardner, Accessioner Danielle Balmaceda, and Accessioner Phoebe McDougal, one of the employees complained that Mr. Jubela was not helping with an aspect of the team's work. ECF No. 41-3 at 13:1-4. Mr. Jubela lost his temper, cursing and using degrading language to describe the team. Id. He stated that the Accessions Department was made up of “the most ignorant bunch of women [he had] ever met” and that the women were “lazy and stupid.” ECF No. 41-20. He called one employee “a baby, ” accused Phoebe and Michelle of doing “a shitty job” and told the team, “fuck you.” Id. Mr. Jubela was asked to apologize and attend anger management classes. ECF No. 48-6 at 35:2-7. After this incident, Dr. Bale divided the work between Plaintiff and Mr. Jubela so that Plaintiff was primarily responsible for “personnel” issues while Mr. Jubela was primarily responsible for “workflow.” ECF No. 41-3 at 13:14-21.

         Despite this incident, Plaintiff and Mr. Jubela received equal three percent raises for the 2010 performance period, meaning Plaintiff continued to earn less than Mr. Jubela. ECF No. 41-18; ECF No. 42-6. Plaintiff's pay increased from $42, 000 to $43, 260, and Mr. Jubela's increased from $44, 000 to $45, 320. Id.

         For the 2010 performance period, Plaintiff received four Successfully Meets Expectations, six Exceeds Expectations, and two Outstanding ratings. ECF No. 48-3. As part of her 2010 year-end review, Dr. Bale commented that Plaintiff had “valiantly stepped up to a supervisory role” and that she was handling the position in “an outstanding manner.” Id. at 32. Dr. Bale also noted that Plaintiff's academic background was an asset. Id. at 34. Mr. Jubela's 2010 performance review is not included in the record.

         In 2011, Plaintiff started keeping a refrigerator in her office because the Accession Department was not near the kitchen or break room. ECF No. 48-1 ¶ 8. Mr. Jubela and the Accessioners would use the fridge to store snacks, and some of Plaintiff's subordinates started to take their breaks in her office. Id.; ECF No. 41-3 at 16:9-15.

         On March 14, 2011, Dr. Bale formally promoted both Plaintiff and Mr. Jubela to Supervisor of the Accessions Lab, effective February 5, 2011. ECF No. 41-22; ECF No. 41-23. In mid-2011, Dr. Renee Varga, Assistant Director of Core Support Services, began supervising Plaintiff and Mr. Jubela. ECF No. 41-24 ¶ 5. Communication between Plaintiff and Mr. Jubela had deteriorated after the June 2010 incident. ECF No. 41-3 at 14:13-16. Further, under Dr. Varga's supervision, Plaintiff made fewer suggestions because she felt that Mr. Jubela's opinions were prioritized, and she thought working on implementing “the team's ideas” rather than pushing her own ideas would best “create a cooperative environment.” ECF No. 48-1 ¶ 14. She would sometimes implement “simple and intuitive” changes to the Accession Department's processes based on Accessioner feedback without promoting her initiative to Dr. Varga. Id.

         For the 2011 performance period, Plaintiff received twelve Successfully Meets Expectations and one Exceeds Expectations. ECF No. 41-25. Dr. Varga praised Plaintiff for having “the trust and respect of members of her term” and “those outside of her department.” Id. at 4. She also noted: “Keisha works hard to get her work done and will stay late or come in on the weekend to help out other team members.” Id. at 5. Additionally, Dr. Varga commented: “while she is good about completing her job responsibilities, I would like to see more initiative in volunteering for side tasks and brainstorming ideas about where she could best use her abilities to improve things.” Id. . at 5.

         Although Dr. Varga was apparently only vaguely aware of the June 2010 incident, ECF No. 41-27 at 14:17-21, she still commented numerous times on Mr. Jubela's evaluation that Mr. Jubela needed to improve his interpersonal and communications skills:

• “Ray has been working on improving his Interpersonal skills, especially concerning relating with others outside of Accessions.” ECF No. 41-28 at 4.
• “One area that can be improved upon is how he comes across to others regarding accepting responsibility for mistakes and poor judgement.” Id.
• “[W]e need to work on improving his communications and the impressions he gives to some of those outside of his department.” Id. at 5.
• “One of Ray's goals will be to continue to improve his interpersonal skills, how he comes across to others and how to better communicate with others, even in difficult situations.” Id. at 6.

         Despite this feedback, Mr. Jubela earned one Outstanding, three Exceeds Expectations, and nine Successfully Meets Expectations on his 2011 review, including a “Successfully Meets Expectations” for the Communication Skills category and an “Outstanding” in the Teamwork category. ECF No. 41-28. Dr. Varga's positive feedback for Mr. Jubela included that he “had written a great training checklist that was used as template for all other departments, ” id. at 3, and that he was “great about volunteering for tasks and turn[ing] them around quickly, ” id. at 4.

         For this performance period, Plaintiff received a 2.14 percent pay increase which increased her salary from $43, 260 to $44, 190. ECF No. 41-26. She also received a $2, 000 bonus. Id. Mr. Jubela also received a 2.14 percent pay increase, increasing his salary from $45, 320 to $46, 294. ECF No. 42-7. Mr. Jubela also received a $2, 000 bonus. Id.

         On November 26, 2012, Plaintiff complained to Dr. Varga on behalf of the team about Mr. Jubela's communications skills. Specifically, Plaintiff complained: “When [R]ay flies off the handle the accessions [team] feel uncomfortable and then don't want to go to him for anything. His flying off the handle also give a negative impression to the accessioners.” ECF No. 41-34. The next day, Mr. Jubela received a “Spot Award Bonus” for volunteering to complete a project. ECF No. 41-33. Dr. Varga did not track complaints about Mr. Jubela's communication style or penalize him, but she did discuss the issue with him and noted the issues in his evaluation. ECF No. 41-24 ¶ 8.

         For the 2012 performance period, Plaintiff received two Exceeds Expectations. ECF No. 41-30. Dr. Vargas praised Plaintiff Foster for being “hands-on with her team” and her willingness to help the team out as needed. Id. at 3. She commented that “[w]hen someone comes to” Plaintiff “with a question or problem, she will work hard to find the answer, ” and that the Accessions team had a 99.8% accuracy rate under her supervision, Id. at 6. Dr. Varga also provided this feedback:

Kiesha has always had a welcoming and friendly demeanor which has created an open and enjoyable working environment for her team. This is an important quality for a supervisor so that others feel comfortable to come to her with questions. While I am happy that her team feels so at ease with her, I feel that is also negatively impacting her time management and causing her to miss deadlines like she has this past year.

Id. at 6. Dr. Varga gave Plaintiff this feedback because she noticed that employees were spending time in Plaintiff's office and she believed it was affecting Plaintiff's ability to complete projects on time. ECF No. 41-24 ¶ 6. During this performance period, Dr. Varga had begun tracking Plaintiff's deadlines. Id. ¶ 7. Throughout the year, Dr. Varga made two notes about times-seven months apart-when she felt Plaintiff had not completed requests in a timely fashion. ECF No. 41-32 at 3. Dr. Varga did not keep similar metrics for Mr. Jubela.

         As for Mr. Jubela's 2012 performance review, he received five exceeds expectations. ECF No. 41-31. Dr. Varga commented:

Ray is an overall good worker who has a good rapport with his team. He works hard, is a team-player and is good at figuring out where a problem is affecting his workflow and then works hard to get it resolved. While there have been some learning experiences in handling conflict situations, he is open to working towards improving in this area and has made progress.

Id. at 6. She brought up Mr. Jubela's interpersonal skills and difficulties handling conflict in two other places in the review. Id. at 4, 6. She also noted that Mr. Jubela had become “much better about clocking in and out for lunch and for the day.” Id. at 6.

         Plaintiff and Mr. Jubela both received a 4.2 percent pay increase, meaning Plaintiff's salary increased from $44, 190 to $46, 056, while Mr. Jubela received an increase from $46, 320 to $48, 245. ECF No. 41-35; ECF No. 42-8. Plaintiff received a $1, 725 bonus, and Mr. Jubela received a $2, 300 bonus.

         In 2013, Plaintiff again complained to Dr. Varga about Mr. Jubela's communication style. ECF No. 41-24 ¶ 10; ECF No. 41-43. Dr. Varga noted that Mr. Jubela had been observed “talking loudly on the phone, especially when upset” or when “complaining about someone, ” and “using inappropriate language, ” and “falling asleep” in a meeting. ECF No. 41-45. Dr. Varga wrote talking points for her conversation with Mr. Jubela about the issues in which she noted that some people found Mr. Jubela “difficult to interact” with even though his position ...


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