Romeka v. RadAmerica II, LLC

Bridget Romeka v. RadAmerica II, LLC, et al., No. 16, September Term, 2022. Opinion by Gould, J. HEALTH CARE WORKER WHISTLEBLOWER PROTECTION ACT – CAUSATION The Supreme Court of Maryland held that to prevail under the Health Care Worker Whistleblower Protection Act, a plaintiff (1) must prove that but for the protected disclosure, the employer would not have taken the adverse personnel action, and (2) may establish but-for causation through the analytical framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). HEALTH CARE WORKER WHISTLEBLOWER PROTECTION ACT – SUMMARY JUDGMENT The Supreme Court of Maryland held that, in a claim of retaliatory firing under the Health Care Worker Whistleblower Protection Act, where a defendant establishes, through a motion for summary judgment filed pursuant to Maryland Rule 2-501 and supported by an affidavit or facts in the record, that there is no genuine dispute as to any material fact that a plaintiff was fired for reasons unrelated to an alleged protected disclosure and plaintiff fails to respond with an affidavit or written statement under oath or to identify any information in the record that establishes a genuine dispute of material fact as to whether defendant’s stated reasons for the termination were pretextual, summary judgment is properly granted in defendant’s favor. Circuit Court for Baltimore City Case No.: 24-C-19-002767 Argued: January 6, 2023 IN THE SUPREME COURT OF MARYLAND* No. 16 September Term, 2022 ______________________________________ BRIDGET ROMEKA v. RADAMERICA II, LLC, et al. ______________________________________ Fader, C.J., Watts, Hotten, Booth, Gould, Eaves, McDonald, Robert N.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Gould, J. ______________________________________ Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Filed: August 30, 2023 2023-08-30 13:40-04:00 Gregory Hilton, Clerk * At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals to the Supreme Court of Maryland. The name change took effect on December 14, 2022. This case arises from the termination of employment of petitioner Bridget Romeka by respondents RadAmerica II, LLC (“RadAmerica”), MedStar Health, Inc. (“MedStar”), and Helixcare Medical Group, LLC (“Helixcare,” and together with RadAmerica and MedStar, “Employer”).

Ms. Romeka alleged that her termination violated the Maryland Health Care Worker Whistleblower Protection Act (the “HCWWPA” or the “Act”), Md. Code Ann., Health Occ. (“HO”) §§ 1-501 through 1-506 (1981, 2021 Repl. Vol.), a statutory scheme that protects employees in healthcare settings against adverse employment consequences from raising health and safety concerns in the workplace. The circuit court granted Employer’s motion for summary judgment, finding that the undisputed facts established that Employer terminated Ms. Romeka on other, non- pretextual grounds.

The Appellate Court of Maryland1 affirmed in a reported decision. Romeka v. RadAmerica II, LLC, 254 Md. App. 414 (2022). We granted Ms. Romeka’s petition for a writ of certiorari. Romeka v. RadAmerica II, LLC, 481 Md. 1 (2022).

Ms. Romeka presents two questions for our review: 1. Did the lower court err by requiring a plaintiff with a retaliation claim under the HCWWPA to show that protected conduct was the but-for cause of the challenged personnel action? 2. Did the lower courts err in awarding summary judgment to the employer, despite genuine disputes of material fact, on the ground that Ms. Romeka could not establish her retaliation claim as a matter of law? 1 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland, and the name of the Court of Appeals to the Supreme Court of Maryland. The name changes took effect on December 14, 2022.

We answer both questions in the negative and affirm the judgment of the Appellate Court. FACTUAL AND PROCEDURAL BACKGROUND RadAmerica is a wholly owned subsidiary of MedStar. RadAmerica contracted with Mercy Medical Center, Inc. (“Mercy”), to supply Mercy with medical physicists and radiation therapists for its Radiation Oncology Center (the “ROC”). In the ROC, RadAmerica employees worked with Mercy’s physicians and employees.

In 2001, RadAmerica hired Ms. Romeka as a radiation therapist and promoted her to Chief Radiation Therapist in October 2003.2 As Chief Radiation Therapist, she supervised three radiation therapists at the ROC: Scott Blackburn, Fabjola Cangonji, and Heather Gilliam. Ms. Romeka’s direct supervisor was Christopher Osik, the Technical Director of RadAmerica who oversaw radiation therapy services at the ROC and six other offices. Mr. Osik’s manager was Dr. Coleman Rosen, RadAmerica’s Vice President of Technology Management. Dr. Fritz Lerma was RadAmerica’s Chief Medical Physicist for the ROC.

He was responsible for maintaining the calibration of the equipment in the ROC for stereotactic radiosurgery (“SRS”) treatments. Dr. Maria Jacobs was the medical director of the radiation oncology unit at Mercy. Dr. Jacobs planned and oversaw all radiation therapy treatments administered at the ROC and, in that capacity, worked with Ms. Romeka. 2 Ms. Romeka stated that she was promoted in 2003; RadAmerica stated that she was promoted in 2002. This factual dispute is not material to the motion for summary judgment. 2 Radiation treatment was delivered at the ROC by a machine manufactured by Varian, Inc. (“Varian”), called the TrueBeam.

The TrueBeam was used to provide SRS treatments to patients with cancer in the head, neck, lung, breast, prostate, and liver. The TrueBeam had three essential parts: (1) the linear accelerator; (2) the imaging system; and (3) the treatment couch. Before treating a patient, the radiation therapist was required to make sure the necessary documents were in the patient’s chart, which was kept in an electronic medical record (“EMR”). Such documents included a written consent form signed by the patient, a physician, and a witness.

The radiation therapist was not permitted to deliver radiation treatment to the patient without a completed and scanned consent form. Initial Investigations On May 2, 2018, after learning of two problems related to Ms. Romeka’s job performance, Dr. Rosen and Mr. Osik began investigating Ms. Romeka’s conduct. The first problem came to light when, in April 2018, a routine peer review of randomly selected EMRs of ROC patients revealed that a patient had received treatment even though the EMR file lacked a completed and signed consent form. Ms. Romeka had administered the treatment in that case.

After she was confronted about the missing document, she accessed the patient’s EMR, and, without consulting anyone, falsely marked “Y” (Yes) in the patient’s first weekly chart check, indicating that the consent form had been signed and scanned into the EMR before treatment began. She also backdated the patient’s first weekly chart assessment and marked it as complete. 3 Shortly after she accessed the patient’s EMR, Ms. Romeka notified Dr. Jacobs that she had administered treatment to a patient without the requisite consent form in the patient’s EMR. When Mr. Osik later learned of this, he requested that Ms. Romeka submit a report in MedStar’s patient safety event system, which Ms. Romeka did. No consent form was ever found.

The second problem arose from a complaint from a radiation therapist on Ms. Romeka’s team, Mr. Blackburn. On May 1, Mr. Blackburn complained to Mr. Osik about Ms. Romeka’s treatment of him and the rest of the team. According to Mr. Blackburn, Ms. Romeka was bullying the radiation therapists, failing to train them, and blaming her mistakes on other people. He also claimed that she did not understand the “basic concepts of radiation treatment” and was disrespectful to the ROC medical staff.

Mr. Blackburn said that all three radiation therapists under Ms. Romeka’s supervision were prepared to resign unless she was removed as their supervisor. On May 2, Dr. Rosen and Mr. Osik interviewed the two other radiation therapists as well as Dr. Jacobs, Dr. Lerma, and Ms. Romeka. According to Dr. Rosen’s notes, the two other radiation therapists confirmed that they were “willing to resign rather than put up with [Ms. Romeka] any longer.” Other co-workers gave similar criticisms of Ms. Romeka’s conduct to Dr. Rosen and Mr. Osik. Dr. Jacobs also complained to Mr. Osik about Ms. Romeka’s job performance, describing her work as sloppy and rushed.

Dr. Jacobs stated that, for the past two years, Ms. Romeka had been “antagonistic.” She described Ms. Romeka as “displaying signs of paranoia,” “toxic,” “slopp[y]”, “rush[ed],” and “disrespectful.” She also expressed concern 4 about Ms. Romeka’s handling of the missing patient consent form and indicated that she thought that Ms. Romeka had not taken the problem seriously enough. Dr. Jacobs also recounted incidents of Ms. Romeka’s poor job performance and altercations with co- workers. She asked for Ms. Romeka to be removed from her staff. Mr. Osik described his interview with Dr. Jacobs as having set in motion Ms. Romeka’s termination.

When Dr. Lerma was interviewed by Dr. Rosen, he said that he had been questioning Ms. Romeka’s competency as a radiation therapist. He recounted that he once had to intervene after Ms. Romeka had set up the TrueBeam in a way that could have harmed a patient. According to Dr. Lerma, Ms. Romeka “did not know what she was doing,” was rude to staff and physicians, was “difficult to speak with, always in a hurry, and [did] not wish to engage in conversation.” When Ms. Romeka was interviewed by Dr. Rosen, she acknowledged that she had yelled at nurses in the ROC. On May 10, Dr. Rosen and Mr. Osik decided that Ms. Romeka should be terminated and that a lesser form of discipline, such as a transfer to another facility, was not an option because she had falsified medical records.

As a subsidiary of MedStar, RadAmerica followed MedStar’s personnel policies, which required an independent investigation by MedStar’s human resources (“HR”) department to confirm a decision to terminate an employee. Accordingly, on May 10, Dr. Rosen contacted Wendy Greer of MedStar’s HR department. He told her about his investigation and asked her to perform her own. Dr. Rosen testified in his deposition that “prior to HR getting involved, [he] and Mr. Osik were already leaning in the direction of termination, but [he] needed HR to get involved to confirm that decision.” Ms. Greer stated 5 in an affidavit that “[t]he decision to terminate Ms. Romeka had been made by Dr. Rosen and Mr. Osik on May 10, 2018.” Other Job Performance Problems On both May 10 and 11, Dr. Lerma witnessed Ms. Romeka engage in conduct that he thought created patient safety issues.

Ms. Romeka had been rushing SRS treatments and moving parts of the TrueBeam in a way that compromised patient safety. Dr. Lerma testified that he told Ms. Romeka that “she was not delivering safe radiosurgery treatments.” He sent an email to Dr. Rosen which stated: “This new situation is a signaling at a significant safety risk. As chief physicist, I am writing to request to remove Ms. Romeka from treating on the [TrueBeam] until this can be further investigated as to the root cause of why she is rushing treatments.” On May 14, Dr. Rosen forwarded Dr. Lerma’s email to the President of RadAmerica, David Spearman. Dr. Rosen informed Mr. Spearman that he and Dr. Lerma had spoken in the morning and that Dr. Lerma would be meeting with Ms. Greer later that day.

Separately, Dr. Lerma asked Dr. Jacobs whether he could bar Ms. Romeka from participating in treatment if he thought that was necessary. She authorized Dr. Lerma to do so. On May 16, another issue surfaced regarding Ms. Romeka’s previous falsified medical record. Mr. Osik learned that the Patient Safety Event Report about the incident that Ms. Romeka had submitted at his request was inaccurate.

Although the patient had started radiation treatment on April 9, Ms. Romeka incorrectly noted in the report that the patient had started treatment on April 30. Ms. Romeka’s report also did not reflect the fact 6 that the patient had finished an entire course of radiation treatment without the requisite consent form. Further, she named Dr. Jacobs as the only “[i]nvolved [p]arty,” although she, as the treating therapist, was the principal “[i]nvolved [p]arty.” Mr. Osik emailed this information to Dr. Rosen and stated that this “was another example of [Ms. Romeka]’s sloppiness and not taking responsibility as a leader.” HR’s Investigation On May 14, Ms. Greer interviewed Ms. Romeka and seven of Ms. Romeka’s co- workers. The interviews corroborated the accounts of Ms. Romeka’s behavior at work: people described her as argumentative, disorganized, rushed, unsafe, nasty, and incompetent.

According to Ms. Greer, Dr. Lerma described Ms. Romeka as “constantly rushing, seem[ing] anxious, fidgeting with equipment, not calm,” and that she “left [things] undone a lot.” Dr. Lerma was concerned about her job performance and described the incidents that occurred on May 10 and 11 that he believed created patient safety issues. In addition, Ms. Greer learned from Dr. Jacobs that Ms. Romeka had falsified a medical record. When Ms. Greer interviewed Ms. Romeka, Ms. Romeka told her that she “always gets consent to treat ahead of time.” During her later deposition in this case, Ms. Romeka also denied that she did anything wrong on May 10 and 11. On May 16, with her investigation completed, Ms. Greer concluded that RadAmerica should terminate Ms. Romeka “based on her conduct, performance, and behavior.” She notified Mr. Spearman of that conclusion at some point between May 16 and 18. 7 Alleged Protected Disclosure On May 15, while the investigation and termination processes were proceeding apace, Mr. Blackburn was treating a patient with the TrueBeam when he discovered that the motor in the treatment couch was not working.

He “manually rotate[d] the couch to move the patient into the proper position for treatment” and noted that “[t]he treatment couch was not difficult to move and rotated smoothly and carefully.” He reported the problem to Dr. Lerma and to Rod White, a Varian employee. Mr. White ordered replacement parts for the treatment couch, but delivery was delayed. On May 16, Ms. Romeka manually rotated the TrueBeam couch while treating a patient. She did not raise a safety concern about either Mr. Blackburn’s manual rotation of the treatment couch on May 15 or her manual rotation on May 16.

However, she told Mr. Osik that she injured her hip while manually moving the couch. She testified that she did not raise a patient safety concern when she manually moved the couch because the movement was not significant. On May 17, two patients with brain tumors were scheduled for SRS treatments with the TrueBeam in the early afternoon. In the morning, Ms. Romeka raised concerns to Dr. Lerma about administering SRS treatments “with a broken couch.” She mentioned the safety concerns to Dr. Jacobs and expected the treatments to be cancelled.

A Varian engineer explained to Dr. Lerma that SRS treatments could be performed safely on patients by manually rotating the TrueBeam’s treatment couch. Dr. Lerma communicated that information to Dr. Jacobs, who decided that they would go forward with the SRS treatments. Dr. Lerma told Dr. Jacobs that he was planning to perform the two treatments 8 without Ms. Romeka. According to Dr. Lerma, Dr. Jacobs approved of this decision.

Dr. Lerma explained in his deposition that Dr. Jacobs’s authorization to exclude Ms. Romeka had “nothing to do with the [TrueBeam] couch.” Dr. Lerma told Ms. Romeka that she would not be participating in the treatments. Ms. Romeka contacted Dr. Jacobs and Dr. Rosen and asked why she was excluded from the two treatments. She told Dr. Jacobs that she did not “think pushing the couch for an SRS treatment [was] a good idea.” Although she had been told that she would not be participating in the treatment, Ms. Romeka tried to enter the treatment room. Dr. Lerma blocked her from entering, but Ms. Romeka observed the procedure from the control room just outside the treatment room.

Both Dr. Jacobs and Dr. Lerma were in the treatment room for both SRS treatments. Ms. Romeka claimed that she noticed the first patient move out of position during the SRS treatment and requested a confirmatory computed tomography (“CT”) image to ensure the radiation had been accurately delivered, but her request was ignored. Dr. Lerma reported that the manual movement of the couch was “smooth” and that the patient did not move during the treatment. Dr. Jacobs corroborated Dr. Lerma’s account.

The other people in the room did not see the patient move and did not recall Ms. Romeka saying that she saw the patient move. Mr. Blackburn testified that he did not see either patient move during treatment. Ms. Romeka testified that she told Dr. Jacobs—Mercy’s employee—that she would file a grievance “about what I just witnessed in the clinic.” Ms. Romeka testified that Mr. Osik told her he would speak with Dr. Rosen and get back to her about the process for 9 filing a grievance. Mr. Osik acknowledged that Ms. Romeka said she wanted to file a grievance, but in his subsequent email to Dr. Rosen, he reported only that she was upset at the way Dr. Lerma was treating her.

Dr. Rosen recalled receiving no information about Ms. Romeka’s intent to file a grievance. Later that day, Mr. Osik texted Ms. Romeka that he and Dr. Rosen would meet with her on Monday, May 21, at 9:00 a.m. Ms. Romeka thought—mistakenly, as she would find out—that the meeting was to discuss the process for filing a grievance. The Termination The final decision to terminate an employee of RadAmerica rested with RadAmerica’s president, Mr. Spearman.

Mr. Spearman and Dr. Rosen discussed the fact that Ms. Romeka had falsified medical records. The record reflects that at some point between May 16 and May 18, Mr. Spearman authorized Dr. Rosen to terminate Ms. Romeka. Reviewing the facts in the light most favorable to Ms. Romeka, we assume that this authorization was not given until at least the morning of May 18, after Ms. Romeka informed Mr. Osik of her intention to file a grievance. The record reveals no evidence that either Mr. Spearman, Dr. Rosen, or Ms. Greer knew about Ms. Romeka’s complaint regarding the SRS treatments on May 17.

On May 18, Dr. Rosen told Mr. Osik to proceed with the paperwork for Ms. Romeka’s termination. Mr. Osik prepared the paperwork and provided it to Ms. Greer just before 4:00 p.m. that same day. Mr. Osik also told Mr. Blackburn that, starting on Monday, May 21, Mr. Blackburn would be the acting Chief Radiation Therapist. 10 On Sunday, May 20, Ms. Greer approved the paperwork for terminating Ms. Romeka. On Monday morning, Mr. Osik and Dr. Rosen met with Ms. Romeka and terminated her.

Ms. Romeka was given a notice that listed the Concern/Issue as “Unsatisfactory Performance” and identified five specific issues: (1) “Lack of communication Patient Safety”; (2) “Disrespectful of staff and physicians”; (3) “Lack of integrity”; (4) “Unsatisfactory Performance”; and (5) “Integrity/Falsification of Medical Record.” The Circuit Court Action On May 8, 2019, Ms. Romeka filed a lawsuit in the Circuit Court for Baltimore City. She amended the complaint twice. Ms. Romeka alleged that Employer unlawfully terminated her employment in retaliation for making a protected disclosure under the HCWWPA. Employer moved for summary judgment on two grounds: (1) Ms. Romeka failed to make a protected disclosure in writing; and (2) Employer had already decided to terminate her before the two SRS treatments on May 17 and terminated her for reasons having nothing to do with the allegedly protected disclosure.

Ms. Romeka countered that Employer’s stated reasons were merely pretextual and that she was unlawfully terminated in retaliation for complaining about the two SRS treatments on May 17. After hearing oral argument, the circuit court granted Employer’s motion. The court reasoned that Employer “ha[d] demonstrated without dispute that [it was], in fact, in process of terminating Ms. Romeka for reasons other than any conceivable complaint about 11 patient health or safety because it preceded in time any possible such complaint.” The court explained: [E]ven if I were to resolve the factual disputes in favor of the plaintiff for the fact that she did make a complaint, and that that was her purpose in challenging her exclusion from the treatment room on the afternoon of May 17th, even if I were to indulge her in the possibility that a jury could believe her on that point, it would not amount to causation overcoming what the defendants were already doing in terms of their investigation and their consideration of her status as an employee. The Appellate Court’s Decision On April 27, 2022, the Appellate Court affirmed the circuit court’s decision.

Romeka v. RadAmerica II, LLC, 254 Md. App. 414 (2022). In a thorough and well- reasoned opinion, the Appellate Court held that the evidentiary framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applied to Ms. Romeka’s claim, that the Act required but-for causation to prove liability, and that the uncontroverted evidence established that Ms. Romeka’s termination had nothing to do with her alleged protected disclosure. Romeka, 254 Md. App. at 453, 455-56, 464. DISCUSSION I We begin by addressing the standard of proof for causation under the HCWWPA.

As this is a matter of statutory construction, we review the circuit court’s decision without deference. Harvey v. Marshall, 389 Md. 243, 257 (2005) (questions of statutory interpretation are legal issues reviewed de novo by appellate courts). Ms. Romeka argues for a “contributing factor” standard of causation under the HCWWPA. She contends that the Act requires a plaintiff to prove only that the adverse 12 personnel action was motivated by the plaintiff’s protected conduct.

She argues that the Appellate Court erred in relying upon University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), which held that a but-for causation standard applies to retaliation claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e. She also claims support in other federal whistleblower statutes as well as whistleblower statutes from other states.3 Ms. Romeka argues that the General Assembly used the word “reprisal” instead of “retaliation” or