Dobkin v. University of Baltimore School of Law

HOTTEN, J. Appellant, Donald Dobkin (“Mr.Dobkin”), filed a complaint in the Circuit Court for Baltimore City against appellee, the University of Baltimore School of Law (“U.B.”), alleging that U.B. failed to hire him as an immigration law professor when he was fifty-six years of age, due to age discrimination, 1 in violation of the Md.Code (1984, 2009 RepLVol., 2012 Supp.), § 20-606(a) of the State Government Article. 2 He alleged ⁵⁸⁵ that U.B. hired a thirty-two year old woman, who was less experienced and qualified for the position. U.B. averred that the successful applicant 3 possessed qualifications that appellant lacked, including experience and training in clinical teaching. Following discovery, U.B. filed a motion for summary judgment, asserting that appellant failed to provide sufficient evidence to support his claim. Appellant opposed the motion, contending that there were questions of fact regarding whether U.B. discriminated against him based on his age and whether it had a practice of discriminating against older applicants, which resulted in a disparate impact.

The circuit court granted U.B.’s motion for summary judgment. Appellant noted an appeal, and presents two questions for our consideration: 1. Whether the circuit court erred in granting summary judgment as to count I, disparate treatment based on age, where the record evidence showed that Dobkin’s qualifications were demonstrably superior to those of the hiree and UB presented shifting and inconsistent explanations for not interviewing or hiring him[.] 2. Whether the circuit court erred in granting summary judgment as to count II, disparate impact based on age, where the record evidence showed that UB has never hired any entry-level candidates who were over the age of 40[.] For the reasons that follow, we affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND In August 2009, U.B. posted an advertisement on the Association of American Law Schools (“AALS”) Bulletin, seeking applicants relating to three teaching positions for the 2010-2011 academic year. The advertisement read as follows: ⁵⁸⁶ THE UNIVERSITY OF BALTIMORE SCHOOL OF LAW * seeks entry level or experienced faculty for tenure-track or tenured positions beginning in the 2009-2010 academic year. We invite applications from candidates who have a distinguished academic background, a record of or the promise of both teaching excellence and scholarly distinction, and a commitment to service in law school and the community. A wide range of teaching interests will be considered, including but not limited to commercial law, intellectual property, immigration, environmental law, contracts, property, criminal law, and torts.

Positions will remain open until filled but applicants are encouraged to apply as soon as possible to receive full consideration. In keeping with its commitment to a diverse faculty, the law school welcomes applications from all qualified candidates and encourages women and minorities to apply.... Approximately 833 applicants applied for the faculty positions, including appellant and the successful applicant. According to her resume, the successful applicant graduated from the University of Michigan — Ann Arbor in 1999.

After her undergraduate studies, she interned with the American Civil Liberties’ Union (“ACLU”) Immigration Rights Project. She then matriculated to Yale University Law School, where she supervised students and facilitated classes as the Student Director of the Immigration Legal Services Clinic. She graduated in 2003, and became a member of the New York Bar Association. From 2003 to 2005, she was a faculty fellow at Seton Hall University School of Law’s Immigration/Human Rights and Civil Litigation Clinics, and designed course work, facilitated seminar classes, and supervised law students in proceedings concerning asylum, human trafficking, immigrant labor rights, and criminal immigration issues.

From 2005 to 2008, the successful applicant clerked for judges on the United States (“U.S.”) District Court and U.S. Court of Appeals for the Second Circuit. In 2008, she became a clinical teaching fellow at Georgetown University Law Center, where she at ⁵⁸⁷ tended a course on clinical pedagogy, taught law students in the asylum law clinic, and published an article in the Georgetown Immigration Law Review. As stated in appellant’s resume, he obtained his Bachelor of Laws degree from the University of Windsor in Ontario, Canada, where he graduated in the top fifteen percent of his 1975 graduating class. 4 He then attended Northwestern University School of Law, and obtained his Master of Laws degree in 1976. During this same year, he joined the American Medical Association in Chicago, Illinois as an immigration attorney.

In 1977 and 1979 respectively, he became licensed to practice law in Illinois and Michigan. In 1979, appellant founded Dobkin & Associates, an immigration law firm. According to appellant, he is a former chairperson of the Immigration Law Section of Oakland County’s Michigan Bar Association, an internationally renowned immigration attorney, who has handled over 7,000 cases, and has given lectures concerning immigration law in the U.S., Canada, and England. In 2006 and 2009, appellant published respective immigration law articles in journals from St. Thomas University School of Law in Florida and University of California, Los Angeles School of Law.

As further reflected in his resume, appellant retired from active practice to seek a career in academia. On August 29, 2009, appellant submitted his application materials for the immigration law professor position to Elizabeth Samuels, (“Ms.Samuels”), the Chairperson of the Faculty Appointments Committee (“the Committee”). 5 On September 1, 2009, Ms. Samuels confirmed that the Committee received the application, and appellant replied several days later. After not receiving further communication, on February 5, 2010, appellant contacted Ms. Samuels via electronic mail, writing: ⁵⁸⁸ Since I’ve not heard from UB [sic] concerning my application for the position in Immigration and Administrative Law, I assume there is no interest. I would like to know who was hired for the position?

Ms. Samuels replied the same day, offering her apologies that appellant was not interviewed, and stated that the successful applicant was hired for the new position. Less than an hour later, appellant wrote: Thanks for answering me. It’s simply amazing how law schools choose newbies like [the successful applicant] and don’t even bother to interview candidates with a world of experience. Something is seriously wrong here.

From the 833 applications, only 56 applicants were interviewed, and the Committee identified fourteen candidates for “second-round” interviews. In addition to the successful applicant, the Committee hired two others, who were thirty-eight and forty years old respectively. According to Ms. Samuels’ affidavit, U.B.’s criteria was “a combination of academic training and success, publications, judicial clerkships, and teaching experience,” in conjunction with a Juris Doctor from a top ten U.S. law school. The Committee was highly impressed with the successful applicant’s academic credentials, as she was a Yale University School of Law graduate and she clerked on the federal levels.

Moreover, the Committee favored her significant experience and training in clinical teaching in the area of immigrant rights. According to U.B., appellant was neither interviewed nor hired because he had no prior clinical or law school teaching experience, and his academic credentials did not compare favorably to other applicants. He did not graduate from a prestigious law school, and had neither state nor federal clerkship experience. Although appellant practiced law for countless years, he did not possess the additional qualifications that the Committee desired.

On March 18, 2010, appellant filed a charge of age, national origin, and gender discrimination with the Baltimore Community Relations Commission and the Maryland Commission of ⁵⁸⁹ Human Relations. Because more than 180 days passed regarding that filing, on November 16, 2010, appellant filed a complaint in the circuit court, alleging that appellee failed to hire him, but instead hired a thirty-two year old woman, who was less experienced and qualified for the position. On January 31, 2011, U.B. filed its answer. Following discovery, on November 10, 2011, U.B. filed its motion for summary judgment, asserting that appellant (1) failed to submit any evidence that the Committee harbored a discriminatory attitude against applicants over the age of forty; (2) failed to establish that the Committee predicated its decision on the applicants’ ages, (3) provided insufficient evidence to establish discriminatory pretext, (4) failed to submit any evidence to dispute that U.B. hired a substantial number of faculty over the age of forty; and (5) failed to identify a policy on statistical evidence that U.B.’s hiring practices had an adverse impact on applicants over the age of forty.

On December 6, 2011, appellant filed his opposition to the motion for summary judgment, contending that there were questions of fact regarding whether U.B. discriminated against him based on his age, and whether it had a practice of discriminating against older applicants, which disparately impacted those over the age of forty. On December 14, 2011, the circuit court granted U.B.’s motion for summary judgment, finding: ... The [cjourt — it’s not the [cjourt’s decision to decide that practitioner’s [sic] are better for clinical teachers than academicians. Maybe they are.

But that’s [sic] not the [c]ourt’s decision. And that’s the core argument that’s being made here. And that’s what the core evidence is. The core evidence is that the University of Baltimore was looking for and ending up hiring somebody who was better described as an academician than a practitioner to teach clinical education.

And from Mr. Dobkin’s standpoint, particularly since they wanted someone with breadth, that that [sic] was totally wrong. Because they hired somebody who only had experience in one area. ⁵⁹⁰ And frankly, the law school didn’t care. Because what they were looking at was, [sic] more academic credentials. Those were of high importance to them.

Much more important than the practice. It really, again, just — and I went though [sic] this several times, because frankly — and went through in particular about the law — because the [appellant] was so adamant about his own qualifications, and the superiority of those. And what it is. And in the end, on the incompetence, Not discrimination, but incompetence of the Appointment Committee.

And that really was his focus. And that that [sic] incompetence leads to that. And, again, that’s [sic] not my understanding of the law. So, for all of those reasons, you know, Im [sic] going to grant the Motion for Summary Judgment.

And it may be that the appellate court has something to teach me that I’m wrong in. Thereafter, appellant noted a timely appeal. STANDARD OF REVIEW We review an entry of summary judgment de novo to determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Poole v. Coakley & Williams Construction, Inc., 423 Md. 91, 108 , 31 A.3d 212 (2011).

In considering the trial court’s grant of a motion for summary judgment, we review the record in the light most favorable to the nonmovant. Bednar v. Provident Bank of Maryland, Inc., 402 Md. 532, 542 , 937 A.2d 210 (2007) (citing Rhoads v. Sommer, 401 Md. 131, 148 , 931 A.2d 508 (2007)) (‘We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from ⁵⁹¹ the facts against the moving party.”) (additional citation omitted). Summary judgment is not proper when there is a genuine dispute of material fact, including disputes over reasonable factual inferences. Poole, 423 Md. at 109 , 31 A.3d 212 (citing Fenwick Motor Co. v. Fenwick, 258 Md. 134, 136 , 265 A.2d 256 (1970) (internal quotation omitted) (additional citation omitted)).

The court’s function during a summary judgment hearing is to determine whether a genuine dispute of fact exists, including factual inferences. Charles County Comm’rs v. Johnson, 393 Md. 248, 263 , 900 A.2d 753 (2006). “Courts must take special care when considering a motion for summary judgment in an employment discrimination case.... ” Derrickson v. Circuit City Stores, Inc., 84 F.Supp.2d 679, 684 (D.Md.2000) (quoting Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001 , 1005 (4th Cir.1987) (omitted quoted sentence)). In such cases, when a party moves for judgment, he or she must present legally sufficient direct or circumstantial evidence to establish that the facts are susceptible to more than one permissible inference.

See Williams v. Maryland Dpt. of Human Resources, 136 Md.App. 153, 163 , 764 A.2d 351 (2000). Legally sufficient means that the injured party cannot sustain its burden by “offering a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture....” Malik v. Tommy’s Auto Serv., Inc., 199 Md.App. 610, 620 , 24 A.3d 114 (2011) (citing Myers v. Bright, 327 Md. 395, 399 , 609 A.2d 1182 (1992)) (omitted additional citation). Instead, the party must present evidence of legal probative force and evidential value. Id.

If there is any such evidence, the jury should weigh and determine the value of such evidence. Id. at 619-20, 24 A.3d 114 . DISCUSSION I. Whether Appellant Met His Initial Burden Of Establishing A Prima Facie Case Of Age Discrimination. A complainant may establish that age was a factor in an employer’s hiring decision by using direct or circumstantial ⁵⁹² evidence.

Williams, 136 Md.App. at 163 , 764 A.2d 351 . “ ‘Evidence is ‘direct’ ... when it consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision.’ ” Id. (quoting Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir.2000). See also Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir.1999).) In the case at bar, the circuit court found that there was no direct evidence, stating “I think everybody would agree here that there’s no direct evidence. And I want to be really clear, the fact that there’s no direct evidence does not therefore lead to [m]otion for [s]ummary [j]udgment.” We agree with the circuit court, that in particular circumstances, circumstantial evidence can be “‘more certain, satisfying and persuasive than direct evidence.’ ” Taylor v. Giant of Maryland, LLC, 423 Md. 628, 652 , 33 A.3d 445 (2011) (quoting Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 299-300 (4th Cir.2010) (quoting Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 , 123 S.Ct. 2148 , 156 L.Ed.2d 84 ) (2003)).

Thus, because appellant alleges that he has presented circumstantial evidence of pretext and discriminatory intent, we shall review the nature of this theory. In the absence of direct evidence, Maryland Courts have traditionally held that in employment discrimination actions, parties must engage in the four-part burden-shifting paradigm described by the United State Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). Giant of Maryland, LLC v. Taylor, 188 Md.App. 1, 26 , 981 A.2d 1 (2009) [hereinafter “Giant I"] rev’d on other grounds 423 Md. 628 , 33 A.3d 445 (2011). See also Dep’t of Natural Res. v. Heller, 391 Md. 148, 171 , 892 A.2d 497 (2006); Maryland Comm’n on Human Relations v. Kaydon Ring & Seal, Inc., 149 Md.App. 666, 695-98 , 818 A.2d 259 (2003); Nerenberg v. RICA of Southern Maryland, 131 Md.App. 646, 661 , 750 A.2d 655 (2000); Killian v. Kinzer, 123 Md.App. 60, 68 , 716 A.2d 1071 (1998); Brandon v. Molesworth, 104 Md.App. 167 , 188 n. 18, 655 A.2d 1292 (1995) , aff'd in part, rev’d in part, 341 Md. 621 , 672 A.2d 608 (1996) ; Maryland Shipbuilding & Drydock Co., Inc. v. Mary ⁵⁹³ land Comm’n on Human Relations, 70 Md.App. 538, 545-46 , 521 A.2d 1263 (1987) [hereinafter “Maryland Shipbuilding ”]; Levitz Furniture Corp. v. Prince George’s County, 72 Md.App. 103, 111-13 , 527 A.2d 813 (1987); Baltimore and Ohio Railroad Co. v. Bowen, 60 Md.App. 299, 305 , 482 A.2d 921 (1984); Maryland Commission on Human Relations v. Washington County Cmty.

Action Council, Inc., 59 Md.App. 451, 455-56 , 476 A.2d 222 (1984). Pursuant to this test, to establish a prima facie case of failure to hire predicated on unlawful discrimination, the complainant must illustrate that he or she (1) was a member of a protected class; (2) applied and was qualified for the position that he or she sought; (3) was not hired, despite his or her qualifications; and that (4) after the rejection, the position remained open and the employer continued to seek applicants that had his or her qualifications. Williams, 136 Md.App. at 165, n. 2 , 764 A.2d 351 (citing McDonnell, 411 U.S. at 802 , 93 S.Ct. 1817 ). We have noticed various formulations of the prima facie factors, and although they “differ in some respects, they share a common nucleus of thought: a prima facie case is established when a member of a protected group is [not hired] under circumstances which, if unexplained, would support an inference that the decision to [not hire] was based upon a consideration of impermissible factors.” Levitz, 72 Md.App. at 112 , 527 A.2d 813 (internal quotations omitted).

Once the complaining party succeeds in his or her initial burden of establishing a prima facie case of discrimination, the burden shifts to the employer to assert a “legitimate, non-discriminatory reason” for its failure to hire the complainant. Giant I, 188 Md.App. at 26 , 981 A.2d 1 . See also Maryland Shipbuilding, 70 Md.App. at 547 , 521 A.2d 1263 . “What [the Court] means by a legitimate reason is not a reason that makes sense, but a reason that does not deny equal protection.” Ball v. Martin, 108 Md.App. 435, 453-54 , 672 A.2d 143 (1996) (emphasis omitted) (internal quotation marks omitted). “We highlight that although the presumption favoring the [applicant] falls away once the [employer] offers a non[-]discriminatory explanation for not hiring the [applicant] ⁵⁹⁴ in accordance with the second McDonnell Douglas prong, the elements of the [applicant’s] prima facie case remain relevant evidence on the ultimate question of unlawful discrimination.” McGarry v. Pielech, 47 A.3d 271, 281 (R.I.2012) (italics added). See also Center for Behavioral Health, Rhode Island, Inc. v. Barros, 710 A.2d 680, 685 (R.I.1998) (quoted sentence omitted) (citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993)) (additional citations omitted).

See also Nerenberg, 131 Md.App. at 662 , 750 A.2d 655 (stating, “If the [employer] meets this burden, the presumption created by the prima facie case disappears.” The [complainant], however, has the ultimate burden of persuasion) (citing Halperin v. Abacus Tech. Corp., 128 F.3d 191, 197 (4th Cir.1997)). Thus, if the employer’s reasons are acceptable, the complainant may still demonstrate that the employer’s explanations were pretextual and that discrimination was the underlying motive for not being hired. Nerenberg, 131 Md.App. at 662 , 750 A.2d 655 (emphasis added).

Pretext may be demonstrated by establishing that the employer favored other similarly situated applicants, who were not members of the protected class, and disfavored him or her. Giant I, 188 Md.App. at 26 , 981 A.2d 1 . Therefore, to survive a grant of summary judgment, the complainant must offer sufficient evidence to counter the employer’s rationale, and establish that there was “a reasonable probability, rather than a mere possibility, that [the] employer discriminated against [him or] her....’” Nerenberg, 131 Md.App. at 674 , 750 A.2d 655 (quoting DeJarnette v. Corning, Inc., 133 F.3d 293, 298 (4th Cir.1998)). Having outlined the legal structure of McDonnell Douglas, we now analyze the burden-shifting model to the case at bar.

Regarding the first factor, it is uncontested that appellant, who was 56 years old at the time of his application, is a member of a protected class. Furthermore, appellant satisfies factors three and four because U.B. did not hire him, and after rejecting appellant, the position remained open to which U.B. sought other applicants. ⁵⁹⁵ Concerning the second factor, U.B. avers that appellant lacked clinical teaching experience, which was a required quality to merit an interview. However, one of the Committee members, Dionne Koller (“Ms.Koller”), stated during her deposition, “... I would not say [appellant was] less qualified, I would say less attractive.” We surmise that an applicant need only meet the minimum requirements as set forth in the posted job description, and hence, appellant met his initial burden of establishing a prima facie case of age discrimination.

II

Whether U.B. Asserted A “Legitimate, Non-Discriminatory Reason” For Its Employment Decision. As previously stated, once appellant succeeds in his initial burden,' the burden shifts to U.B. to assert a “legitimate, non-discriminatory reason” for its failure to hire the complainant. See Giant I, 188 Md.App. at 26 , 981 A.2d 1 . See also Maryland Shipbuilding, 70 Md.App. at 547 , 521 A.2d 1263 .

According to U.B., appellant was neither interviewed nor hired because he had no clinical teaching experience, and his academic credentials did not compare favorably to other applicants. He did not graduate from a top ten U.S. law school and had no judicial clerkship experience. As indicated by U.B., although appellant practiced law for many years and published law review articles in recent years, 6 he did not possess clinical teaching experience, which the Committee desired. These reasons are legitimate and nondiscriminatory.

III

Whether Appellant Met His Burden By Submitting Sufficient Evidence From Which A Trier Of Fact Could Reasonably Find That U.B.’s Reasons Were Pretextual And Discriminatory. In Baltimore and Ohio Railroad Co. v. Bowen, 60 Md.App. 299, 301 , 482 A.2d 921 (1984) [hereinafter “Bowen”], the ⁵⁹⁶ plaintiff applied for a railroad personnel position, but an examination by the defendant’s, a railroad company, physician indicated that a bullet was lodged in the plaintiffs lumbar vertebra. 7 As a result, the defendant did not hire him. Id. The plaintiff filed a complaint with the State Commission on Human Relations, contending that the defendant discriminated against him based on his physical disability.

Id. at 302 , 482 A.2d 921 . Upon a finding of unlawful employment discrimination, the defendant appealed to the circuit court, which affirmed the Commission’s ruling. Id. at 304 , 482 A.2d 921 . On appeal to our Court regarding the burden of proof, we stated: ...

Once [the plaintiff] established a prima facie case of handicap discrimination — that he was physically able to perform the duties of a carman’s helper — the burden of persuasion properly shifted to [the defendant] to establish to a “reasonable probability” its defense that [the plaintiffs] physical handicap would create a future hazard to his health or safety. Id. at 309 , 482 A.2d 921 . Our Court examined the defendant’s evidence, including testimony from a railroad employee, who stated that workers were required to lift heavy equipment and often bend in uncomfortable positions, as well as the physician’s testimony, who asserted that there was a possible danger of additional injuries. Id. at 303-04 , 482 A.2d 921 .

We stated that the defendant’s evidence was insufficient, as it only demonstrated a risk of a future hazard, and there was testimony that the plaintiff was physically competent to perform the duties. Id. at 313 , 482 A.2d 921 . Accordingly, we affirmed the circuit court’s ruling. Id.

In Taylor v. Giant of Maryland, LLC, 423 Md. 628, 632-33 , 33 A.3d 445 (2011) [hereinafter “Giant II”], the plaintiff, a tractor-trailer driver, filed a complaint with the Human Rela ⁵⁹⁷ tions Commission, alleging gender discrimination when the defendant required her to undergo health examinations for hemorrhaging and uterine fibroids, but did not require the same for her male co-workers. A jury returned a verdict against the plaintiff, but found that the defendant retaliated against her for filing the complaint. Id. at 640-41 , 33 A.3d 445 . The circuit court awarded the plaintiffs attorney fees of $511,255 and costs of approximately $33,670.

Id. at 641 , 33 A.3d 445 . Our Court reversed, concluding that: ... [T]he independent medical examination was not an adverse employment action and that [the plaintiffs] male comparators were “not similarly situated to her, as a matter of law,” because they had different supervisors and their health conditions could be followed and monitored through the Department's] ... mandatory physicals. Id. at 642 , 33 A.3d 445 . The Court of Appeals reversed and remanded to our Court, determining that the plaintiff established gender discrimination, as she produced sufficient evidence of her four male counterparts, who sustained severe medical issues, but were not required to undergo a medical analysis.

Id. at 656 , 33 A.3d 445 . In Williams v. Maryland Dpt. of Human Resources, 136 Md.App. 153, 160 , 764 A.2d 351 (2000), the plaintiff filed a gender discrimination action when the defendant promoted a woman instead of him. 8 The circuit court granted summary judgment on all counts to which the plaintiff appealed. Id. The defendant argued that the plaintiff was not promoted because his “ ‘interview was not as good as [the three] top candidates [and his] ability to interact at [the] supervisory level [was] questionable.’ ” Id. at 161 , 764 A.2d 351 .

The plaintiff presented testimony from his former supervisor who opined that the position was not open to any male applicants, and that a panel member indicated that it had to hire a female. ⁵⁹⁸ Id. at 167-68 , 764 A.2d 351 . Though the plaintiff offered circumstantial evidence that he was more qualified than the successful candidate, and that the defendant failed to follow its promotion process, we stated, “that this evidence, by itself, would not be sufficient to establish [the plaintiffs] claim.” Id. at 174 , 764 A.2d 351 . However, because the direct evidence was adequate enough, we reversed the ruling concerning the gender discrimination count. Id. at 161 , 764 A.2d 351 .

In Maryland Shipbuilding & Drydock Co., Inc. v. Maryland Comm’n on Human Relations, 70 Md.App. 538, 542 , 521 A.2d 1263 (1987), the defendant failed to promote the plaintiff to lieutenant guard. 9 As a result, the plaintiff filed a complaint with the Maryland Commission on Human Relations, averring that racial discrimination was the true motive for denying him the promotion. Id. The Commission agreed with the plaintiff, and the defendant appealed to the circuit court, which affirmed. Id. at 544 , 521 A.2d 1263 .

On appeal to our Court, the defendant contended that the plaintiff was not assertive, lacked logical thinking and writing skills, and sustained a knee injury that would affect his ability to perform specific duties. Id. at 552 , 521 A.2d 1263 . Our Court concluded that there was substantial evidence that the plaintiffs injury was never mentioned prior to his desire for a promotion, he conducted the duties without difficulty, his written reports were “understandable and intelligible,” and he was never informed that he lacked assertiveness, responsibility, or analytical skills. Id. at 552-53 , 521 A.2d 1263 .

We concluded that the defendant’s reasons for not promoting the plaintiff were pretextual and discriminatory, and thus affirmed the circuit court’s ruling. Id. at 553-54 , 521 A.2d 1263 . In Nerenberg v. RICA of Southern Maryland, 131 Md.App. 646, 654 , 750 A.2d 655 (2000), the decedent’s estate filed a disability discrimination action against the defendant, alleging that the defendant discharged the deceased, a psychiatric ⁵⁹⁹ social worker, because she suffered from diabetes. The defendant filed a motion for summary judgment, which the circuit court granted.

Id. at 659 , 750 A.2d 655 . The defendant submitted evidence that the decedent (1) was distracted throughout the day, and became overly-sensitive, making her vulnerable to subjectivity; (2) argued with a doctor in an incident involving a copy machine; (3) designed uncomfortable, trusting exercises for her children, which involved physical contact; and (4) planned a trip to which her children would observe a violent movie with explicit language. Id. at 665-66 , 750 A.2d 655 . Although the estate did not dispute that the above-mentioned occurrences happened, it produced deposition testimonies from the former directors, who hired and supervised the decedent.

Id. at 666-67 , 750 A.2d 655 . They testified that they did not ascertain any issues with the decedent’s duties, and that the children adored her. Id. at 667 , 750 A.2d 655 . Our Court determined that the estate neither established that the decedent met her employer’s expectations, nor that there was a reasonable inference of unlawful disability discrimination, or that the defendant’s explanation for discharging her was pretextual and encompassed discriminatory intent. 10 Id. at 686 , 750 A.2d 655 .

Thus, our Court affirmed the circuit court’s ruling. Id. Although Maryland’s case law regarding employment discrimination for promotions and wrongful termination are useful, they slightly differ from the case at bar, a “failure to hire” action, because the plaintiffs were current employees. 11 Al ⁶⁰⁰ though Bowen , an approximate thirty year old case, was a “failure to hire” case, it was predicated on disability discrimination, as well as Nerenberg , to which the issues were whether the employees were physically and mentally able to perform their duties. Although the plaintiff in Williams argued that his qualifications were superior to the successful candidate, our Court did not compare the qualifications, training, skills, or experiences of the applicants.

Furthermore, Giant II focused on the medical differences of male and female employees, and Maryland Shipbuilding , the employer failed to meet its burden of presenting a legitimate, nondiscriminatory reason for its employment decision. Appellant and the successful applicant were never U.B. employees, so we therefore analyze our sister states’ “failure to hire” actions. Furthermore, “[flederal courts have permitted [complainants] to prove discrimination with circumstantial evidence” by demonstrating that “ ‘similarly situated individuals outside the[ir] protected class were treated more favorably.’ ” Giant II, 423 Md. at 652, 33 A.3d 445 (quoting Benuzzi v. Bd. Of Educ., 647 F.3d 652, 662 (7th Cir.2011)).

Hence, we also examine federal case law to offer additional insight on the governing issues. Qualifications In Casey v. Town of Portsmouth, 861 A.2d 1032, 1034 (R.I.2004), the Rhode Island Supreme Court sought to determine whether an employer failed to hire an applicant because of his age. The plaintiff was fifty-one years old when he interviewed for the town’s utility personnel position, and fifty-two years of age when he interviewed for the second time. Id. at 1035 .

On both occasions, the plaintiff obtained the highest score on the written examination, but was not selected for the position. Instead, two other applicants, who scored lower, and were twenty-eight and thirty-eight years old respectively, obtained the positions. Id. The plaintiff filed a complaint, alleging age discrimination to which the defendants moved for ⁶⁰¹ summary judgment.

Id. The circuit court granted the motion. Id. On appeal, the defendant argued that it did not hire the plaintiff because he interviewed poorly, which the plaintiff recognized as a legitimate, non-discriminatory reason.

Id. at 1038 . Nonetheless, he contended that the court erred in granting summary judgment because “whether he was not hired because of a poor interview that was a pretext for age[-] based animus because that justification [was] subjective.” Id. The Rhode Island Supreme Court determined that the plaintiffs arguments were not sufficient evidence, and that it would not require an employer to “choose between hiring an applicant despite a poor interview and defending an employment discrimination lawsuit.” Id.