United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
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.
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.
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. 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.
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
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.
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. ECF No. 55 at 2. Defendant also
increased Plaintiff's salary to $32, 000 effective
February 2008. ECF No. 48-2.
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
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.
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.”
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
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.
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
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.
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.
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.
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.
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.
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
• “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.
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.
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.
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.
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.
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.
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.
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 ...