MEMORANDUM OPINION
Plaintiff Jane Doe, a licensed psychologist, was recruited by Defendant Suburban Hospital, Inc. (“Suburban”) to address a number of possible ethical and regulatory issues at Suburban and improve compliance with internal policies and applicable law. She now alleges that after she reported; numerous possible violations and conflicts of interest, Suburban fired her and spread damaging rumors about her fitness to' practice psychology. Doe has brought this civil action against Suburban and its parent corporation, the John Hopkins Health System Corporation (“JHHS”), alleging retaliation under the False Claims Act, 31 U.S.C. §§ 3729 to 3733 (2012), retaliation under the Maryland Healthcare Worker Whistleblower Protection Act (“MHWWPA”), Md. Code Ann., Health Occ. §§ 1-501 to 1-506 (West 2008), post-termination retaliation -under the MHWWPA, defamation, and intentional interference with business relations. Pending before the Court is Defendants’ Motion to Dismiss Portions of Plaintiffs First Amended Complaint. A hearing- on the Motion was held on March 23, 2017. For the reasons set forth below, -the Motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
The following facts are presented in the light most favorable to Doe, the ñón-mov-ing party. Doe, a resident of the District of Columbia, is a licensed psychologist with a doctoral degree in education. Suburban is a Maryland corporation that owns and operates a hospital in Bethesda, Maryland. JHHS is a Maryland non-stock corporation based in Baltimore, Maryland and is the sole owner of Suburban.
Doe owned a solo psychology practice for over 25 years. In the summer of 2013, Harry Gill, the Medical Director of .Suburban’s Behavioral Health Department, and Donald Silver, Suburban’s Corporate Director, recruited Doe to serve as the new Director of Suburban’s Outpatient Mental Health Department (“OMHD”). 'Suburban’s accreditation for the OMHD had
Shortly after starting at Suburban, Doe identified various ethical and regulatory violations that could cause Suburban to lose its accreditation. After reporting each violation internally, Doe took action to correct each issue. Despite the earlier promises of support, many of her efforts were met with resistance. In particular, Doe identified various problems with the billing practices of Axis Healthcare Group, a private psychiatry services company controlled by Gill that contracts with Suburban to provide psychiatric services. These problems included double-billing to the Centers for Medicare & Medicaid Services (“CMS”); inflating bills payable by CMS, private insurers, and patients; falsely certifying compliance with CMS regulations; and providing and billing for unnecessary services. Doe also discovered that Gill and other Axis employees were self-referring Suburban patients throughout the Axis network, which she believed to be a violation of state and federal law. Doe reported her concerns to a number of Suburban officials, including Gill, Silver, and Jacqueline Schultz, Senior Vice President of Clinical Operations and Doe’s direct supervisor. Suburban nevertheless took no corrective action. Schultz was initially supportive of Doe’s concerns, but she later cautioned Doe not to use the word “fraud” in her presence, because Schultz would then be required to report the matter herself.
Doe also learned about, and reported to management, other potential conflicts of interests that caused her concern, including a 2013 proposal by Gill for a Partial Hospitalization Program run under his own umbrella corporation and a 2015 proposal for Suburban to engage a company with which Gill had an undisclosed relationship to provide telephonic outpatient support for mental health patients. In 2014, Doe recommended to Silver that an art therapist be terminated for permitting an unsupervised intern to run Suburban’s art therapy program, but management resolved the matter with a written warning. Later that year, when Doe recommended that the same art therapist be terminated for operating the art therapy program without the required license, Suburban again chose to resolve the matter with a written warning. Doe also reported that Silver, who had no medical training, had recommended treatment for patients, only to be told that the practice had been going on for years. No corrective action was taken. Silver, who was popular among Suburban’s employees, left Suburban in 2015 without explanation, and some employees blamed Doe for causing his departure.
On August 17, 2015, Doe was terminated from her position. At a meeting that day with Doe and Schultz, Wayne Stockbridge, the Senior Director of Human Resources, informed Doe that she was being terminated immediately due to a reorganization of her department. JHHS policy requires that an employee affected by reorganization be consulted before termination and provided six weeks’ notice. Stockbridge asked Doe to sign a severance agreement that was modified to add provisions releasing claims of whistleblower retaliation and stating that Doe was unaware of wrongdoing at Suburban or JHHS and had not
a. Created an unpleasant work environment by sharing an office with her staff;
b.,-.Created a disruptive work environment by having employees share an office;
c. Promoted an environment of paranoia by talking quietly or having conversations in the hallway instead of in the shared office;
d. Invited some) but not all[,] of her staff to a glass-blowing class as a teambuilding exercise;
e. “Gossiped” about' staff and made sarcastic “quips” about staff;
f. Sent text messages to' staff after hours and on weekends;
g. Intimidated her staff by setting up meetings that were “confidential”;
h. “Trapped” Mr. Silver into giving clinical advice;
i. Held a “personal vendetta” against [an Axis employee], as evidenced by her asking ... whether [that employee] had committed wrongdoing; and
j. Wore short skirts, sheer pantyhose, open blouses, and no underwear.
Am. Compl. ¶ 34, ECF No. 11. Stockbridge told Doe that the allegations were unrelated to her termination, but that he thought that she should be aware of them. Doe believed that the statements were intended to convey a threat that Suburban would spread the allegations more widely if Doe fought the termination or reported further concerns about fraud. In a telephone conversation two days later, Stockbridge informed Doe that her termination was based in part on this list of allegations after all. He acknowledged that he had not personally investigated the allegations and noted that the allegation related to the glass-blowing class was likely false.
On or about September 9, 2015, Doe, through counsel, informed JHHS that she would not sign the severance agreement. According to Doe, Suburban and JHHS then began to spread rumors about Doe in an attempt to discredit her in her professional community. Katherine Brunkow, an employee at the Washington Center for Psychoanalysis (“the WCP”), informed Doe that someone at Suburban, whom she declined to identify, had called her and made disturbing allegations about Doe, including that Doe had been escorted out of Suburban by hospital security, that she had “lost it,” and that she had pulled her skirt, up over her head. Am. Compl. ¶ 38. None of the allegations were true. Brun-kow later told Doe that a second source had given her additional negative information about Doc. Doe has been a member of, and held leadership positions in, the WCP, a professional organization that served as a source of patient referrals while shé was in private practice. As a result of the allegations made about Doe to Brunkow, WCP leadership became concerned about Doe’s fitness to practice and forced her to undergo a review by the Colleague and Patient Assistance Committee (“CPAC”). Despite Doe’s denial of the allegations, CPAC suggested that Doe needed drug or alcohol treatment.
Around the same time, Nina Van Sant, a Suburban employee who had previously worked under Doe’s supervision, , contacted the Washington School of Psychiatry (“the WSP”),. where Doe held a teaching position. Van Sant told the WSP that if Doe continued to teach there, she was going to withdraw from the program, and she made other negative comments to a member of the WSP steering committee. As a.result of Van Sant’s comments,- the WSP terminated Doe’s teaching position. Doe believes
DISCUSSION
The Motion seeks dismissal of Doe’s claims of post-termination retaliation under the MHWWPA (Count III), defamation (Count IV), and intentional interference with business relations (Count V). Defendants argue that the MHWWPA claim based on post-termination conduct must be dismissed because that statute does not cover post-termination employer conduct. Defendants further assert that Doe has failed to state a claim for defamation because the communications she has identified as defamatory either are not actionable as a matter of law or are insufficiently pled. Finally, they contend that in the absence- of a viable defamation claim, the intentional interference claim necessarily fails because it must be supported by an independent wrongful act,
I. Legal Standard
To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal,
II. Maryland Healthcare Worker Whis-tleblower Protection Act
Count III alleges that Defendants violated the MHWWPA by ietaliating against Doe for disclosing ethical and regulatory violations at Suburban -through a post-termination campaign to discredit her within her professional community. These activities included disseminating false statements to the WCP and the WSP, which led to an inquiry into Doe’s professional fitness and her termination from a teaching position.
The MHWWPA provides that:
[A]n employer may not take or refuse to take any personnel action as reprisal against an employee because the employee:
(1) Discloses or threatens to disclose to a supervisor or board an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation;
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by the employer; or
(3) Objects to or refuses to participate in any activity, policy, or practice in violation of a law, rule, or regulation.
Md. Code Ann., Health Occ. § 1-502. “Employee” is defined as “any individual licensed or certified by a board under this article who performs services for and under the control and direction of an employer for wages or other remuneration.” Id. § l-501(c)(1). “Personnel action” is not defined.
According to Defendants, this count should be dismissed because the MHWWPA covers only retaliatory “per
The Court of Appeals has set forth guidance on the appropriate means to interpret Maryland statutes. “To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the language of the statute. If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to legislative intent ends.” Lark,
Applying these principles, the Court concludes that the MHWWPA’s bar on the taking of a “personnel action” as a reprisal for reporting does not encompass the post-termination communications with the WCP and the WSP aimed at discrediting Doe. Although “personnel action” is not defined in the relevant statute, Maryland regulations relating to the rights of state ena-ployees define “personnel action” as.“an appointment, promotion, disciplinary or corrective action, acting capacity, reassignment, reclassification, reinstatement, performance appraisal, decision affecting compensation, benefits, training, or any other matter which significantly affects an individual’s compensation, terms, conditions, or privileges of employment.” Md. Code Regs. 17.04.08.02 (2017). In other contexts, courts have construed the term “personnel action” to consist of “dismissal or any other action, including demotion or transfer, that is the functional equivalent of dismissal,” Stott v. Haworth,
Although these definitions are by no means determinative, they illustrate that the ordinary meaning of “personnel action” would encompass formal or informal actions effecting a change in an employee’s status at work, such as a. hiring, termination, promotion, demotion, transfer, or reassignment. “Personnel action” could be read to include changes in the terms and conditions of employment, such as .a change in salary,, benefits, duties, or work
The Court recognizes that this interpretation arguably runs contrary to the statute’s “apparent purpose.” See Lark,
This conclusion is bolstered by the fact that the Maryland legislature has demonstrated its willingness and ability to use broader language to prohibit retaliation against employees for reporting misconduct in other circumstances, but did not do so here. Under the anti-retaliation provision of the Maryland employment discrimination statute, “An employer may not discriminate or retaliate against any of its employees ... because the individual has opposed” employment discrimination practices or “made a charge” or otherwise “participated” in an employment discrimination complaint. Md. Code Ann., State Gov’t § 20—606(f) (2015). By barring any conduct that would “discriminate or retaliate” against an employee who has opposed employment discrimination, the statute bars a range of retaliatory activity that includes, but extends well beyond, personnel actions. Where the legislature has elsewhere used broader language to describe the range of prohibited retaliatory activity, its decision to bar only retaliatory “personnel actions” under the MHWWPA must be viewed as placing a deliberate limit on the types of activities barred by this statute. Notably, the United States Supreme Court drew a similar distinction within Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17 (2012), when it concluded that the “discriminate against” language describing the bar on retaliation, see id. § 2000e-3(a), covered a broader range of conduct than the narrower language describing the range of conduct constituting employment discrimination, which consists of acts that “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment,” id. § 2000e-2(a). Burlington Northern,
The remaining case law cited by Doe is unpersuasive because it directly relies on Robinson. In Kissinger-Campbell v. Harrell, No. 8:08-cv-568-T-27TBM,
Thus, the Court concludes that, based on the plain language of the statute, Defendants’ post-termination communications with the WCP and the WSP do not fall within the bar on retaliatory personnel actions under the MHWWPA. The Motion is thus granted as to Count III. The Court therefore need not and does not address whether the MHWWPA protects only current employees or extends its reach to former employees as well.
III. Defamation
Under Maryland law, to establish a prima facie case of defamation, a plaintiff must establish that (1) the defendant made a defamatory statement to- a .third person (a requirement known as publication); (2) the statement was false; (3) the defendant was legally at fault in making the statement; and (4) the plaintiff thereby suffered harm. Gohari v. Darvish,
Under the second element, a statement is “false” if it was “not substantially correct.” Piscatelli v. Van Smith,
Although Doe asks the Court to consider her defamation claim as a single cause of action based on a broad, intentional campaign including statements made at her termination meeting and others made to the WCP and the WSP, each alleged defamatory statement constitutes a “separate instance of defamation” that must be specifically alleged. English Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc.,
A. Stockbridge Statements
Doe first alleges that Stockbridge, Suburban’s Senior Director of Human Resources, defamed her at the meeting at which she was terminated when he made false statements about her in the presence of Schultz, Doe’s direct supervisor. In particular, the statement that Doe “[w]ore short skirts, sheer pantyhose, open blouses, and no underwear,” Am. Compl, ¶34, was plainly of a nature that would cause public scorn or ridicule. Doe alleges that this statement was- published to Schultz, that it was false, and that Stockbridge knew that it was false. The statement was defamatory per se because “the words themselves impute the defamatory character.” See Metromedia,
Defendants argue that Doe has not stated a claim for defamation because (1) the statement was not published to a third party; and (2) the employer-employee qualified privilege applies. Relying on Gray v. AT & T Corp.,
Defendant's,' however, correctly assert that Maryland law recognizes a qualified privilege for communications arising out of the employer-employee relationship in defamation eases. Gohari,
Although the qualified privilege may be applicable to the Stockbridge statements, it is premature to dismiss the defamation claim on this basis. The qualified privilege is an affirmative defense, Shapiro,
..The Court is not satisfied that the Amended, Complaint clearly reveals the validity of the conditional privilege because the privilege “may be lost if abused,”
According to the Amended Complaint, Stockbridge told Doe that the allegations “had nothing to do with the termination, but that he thought she should be aware of them.” Am. Compl. ¶ 34. Only later, according to Doe, did Stockbridge revise his story and claim that the offensive and embarrassing accusations were part of Defendants’ rationale for filing her. Thus, it is not clear whether the statement was made in furtherance of the “applicable societal interest” underlying the qualified privilege. See Woodruff,
B. Brunkow Statements
Defendants also assert that Doe has failed to state a claim for defamation arising from statements made to Katherine Brunkow of the WCP. The Amended Complaint alleges that shortly after Doe’s attorney notified Defendants that Doe would not sign the proposed severance agreement, a Suburban employee contacted Brunkow and told her that Doe “was escorted out of Suburban Hospital by security, that she ‘lost it,’ and that she pulled her skirt up over her head.” Am. Compl. ¶ 38. Doe contends that these statements were defamatory because they negatively affected her standing in her professional community, as reflected by the WCP’s immediate ordering of a CPAC review to assess her fitness to practice psychology. Doe also alleges that the statement was false and that it was intended to harm her reputation in the community. Doe has specifically alleged that she has lost business opportunities from the loss of professional referrals as a result of these statements.
Defendants argue that this defamation claim fails to meet the pleading requirements of Federal Rule of Civil Procedure 8(a) because Doe has not identified which Suburban employee made the statement to Brunkow or alleged that the unidentified person had the authority to make such statements or did so within the scope of employment. They assert that without such information, there is insufficient detail to permit them to respond meaningfully. The Court disagrees. The Amended Complaint alleges to whom the statement was published, approximately when the statement was made, the content of the statement, and that an employee of Suburban published it. Considered as a whole,
Southern Volkswagen, Inc. v. Centrix Financial, LLC,
However, the allegation that Brunkow received “negative information from a second source, whom she described as a ‘senior person, who had heard from younger people,’ ” id., is insufficient to state an additional claim of defamation. Not only is there insufficient information about the content of the communication by which to assess whether it could constitute a defamatory statement, but Doe’s speculation that the speaker might have been Sharon Alperovitz, the Acting Chair of the WSP Steering Committee, reveals that the Amended Complaint does not provide sufficient basis to indicate that the speaker was a Suburban employee. Thus, to the extent that Doe seeks to assert a defamation claim on the basis of this “negative information,” the Motion is granted. Such a claim is dismissed without prejudice because the Court is cognizant that discovery could unearth additional facts that would permit Doe to amend her complaint to state a claim relating to this incident..
C. Van Sant Statements
Doe further alleges that the statements by Nina Van Sant, a Suburban employee, to the WSP constituted defamation. According to the Amended Complaint, Van Sant stated that if Doe continued to teach a particular class at the WSP, Van Sant would withdraw from the class. Van Sant also allegedly made negative comments about Doe to either Alperovitz or another member of the WSP steering committee. These statements led to the WSP’s decision to terminate Doe’s teaching position.
Defendants argue that Van Sant’s statements expressed a personal opinion that is not actionable, that it has not been established that Van Sant was acting in her capacity as a Suburban employee when she spoke, and that the allegation of “negative comments” is not enough to state a claim for defamation. The allegation that Van Sant threatened to withdraw from WSP’s educational program if Doe continued to teach a class does not constitute a defamatory statement because it cannot reasonably be interpreted as stating “actual facts” about an individual that are “provably false.” Milkovich v. Lorain Journal Co.,
IV. Intentional Interference with Business Relations
Defendants also assert that Doe has failed to state a claim for the common law tort of intentional interference with business relations, also known as wrongful interference with contractual or business relations. The elements of this cause of action are: (1) intentional and willful acts; (2) calculated to cause damage to the plain-, tiffs in their lawful business; (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendants (which constitutes malice); and (4) actual damage and resulting loss. Kaser v. Fin. Prot. Mktg., Inc.,
[T]he two general types of tort actions for interference with business relationships' are inducing the breach of an existing contract and, more broadly, maliciously or wrongfully interfering with economic relationships in the absence of a breach of contract. The principle underlying both forms of the tort is the same: under certain circumstances,. a party is liable if he interferes with and damages another in his business or occupation..
Nat. Design, Inc. v. Rouse Co.,
According to Defendants, the intentional interference with' business relations claim rises or falls with Doe’s defamation claim, and- Doe has failed to state a plausible claim for defamation. This argument fails because this Court has found that Doe has stated a plausible defamation claim. See swpra part'III. Moreover, the Court finds that Doe has stated a claim for intentional interference with business relations arising from the alleged negative statements to the WCP and the WSP, regardless of whether those statements are specific enough to support, a claim for defamation. Doe has asserted that false statements were made both to Brunkow at the WCP and by Van Sant to officials at the WSP that depicted her in such a negative light that the WCP required her to undergo a review by CPAC to assess her fitness to practice psychology, and the WSP terminated her teaching position. There was no business reason for Subur
CONCLUSION
For the foregoing reasons, the Motion to Dismiss Portions of the Plaintiffs First Amended Complaint is GRANTED IN PART and DENIED IN PART. The Motion is granted as to Count III, which is dismissed with prejudice,, and Doe’s defamation claims relating to the unspecified statements to the WCP and all statements to the WSP, which are dismissed without prejudice. The Motion is denied as to- all other claims. A separate Order shall issue.