Edgewood Management Corp. v. Jackson

EYLER, DEBORAH S., J. In the Circuit Court for Montgomery County, Donna Jackson, the appellee/cross-appellant, brought a retaliation action pursuant to Md.Code (2009 Repl.Vol., 2010 Supp.), section 20-1202 of the State Government Article (“SG”), asserting a violation of section 27-19(c) of the Montgomery County Code (“MCC”) against Edgewood Management Corporation (“Edge-wood”), the appellant/cross-appellee, her former employer. Jackson alleged that Edgewood had constructively terminated her employment in retaliation for reporting a sex discrimination complaint made by a subordinate. She sought compensatory and punitive damages, as well as attorneys’ fees. Jackson’s case was tried to a jury.

On a special verdict form, the jury found in favor of Jackson, awarding her $500,000 in “economic damages” and $150,000 in “compensatory damages.” 1 The court entered judgment in Jackson’s favor for $650,000 (“the Judgment”). Edgewood filed a ten-day motion to amend the Judgment to “conform with the [MCC]” and a motion for judgment notwithstanding the verdict (“JNOV”). Jackson filed a post-judgment memorandum addressing her entitlement to punitive damages. 2 The court denied Edgewood’s motion for JNOV and granted its motion to amend the Judgment to conform with the MCC. The court entered an amended judgment reducing the verdict ¹⁸³ to $89,195, comprised of back-pay for two years minus the amount of unemployment benefits collected by Jackson during that time (“the Amended Judgment”).

Edgewood noted an appeal, presenting five questions for our review, which we have condensed and rephrased as two: I. Was the evidence at trial legally insufficient to sustain Jackson’s retaliation claim?

II

Did the trial court err or abuse its discretion in declining to submit Edgewood’s proposed special verdict sheet to the jurors? Jackson noted a cross-appeal, presenting four questions for review, which we have condensed and rephrased as three: I. Are the remedies for a retaliation action brought pursuant to SG section 20-1202 limited to those set forth in MCC section 27-8?

II

May economic damages for retaliatory discharge be offset by the amount of unemployment benefits the employee collected?

III

Did the trial court abuse its discretion in declining to instruct the jurors on punitive damages? For the reasons to follow, we answer all the questions in the negative. Accordingly, we shall vacate the Amended Judgment and reinstate and affirm the original Judgment of the circuit court. FACTS AND PROCEEDINGS Except where noted, we present the facts in a light most favorable to Jackson, the prevailing party below.

Edgewood is a property management company headquartered in Germantown. It manages numerous properties throughout Maryland, including Glenview Garden Apartments (“Glenview”) in Glen Burnie. Glenview is a 204-unit, low-income apartment complex subject to regulations by the Department of Housing and Urban Development (“HUD”). It is owned by Triton Advisors, Inc. (“Triton”), a corporation owned and operated by one Janet Charlton. ¹⁸⁴ Triton had purchased Glenview with a “Section 236 loan,” a low-interest loan insured by the federal government under the National Housing Act, 12 U.S.C. § 1715z-l.

In the loan agreement, HUD set the income limits for tenants in the property. See U.S. ex rel. K & R Ltd. P’ship v. Mass. Housing Finance Agency, 530 F.3d 980, 981 (D.C.Cir.2008) (discussing Section 236 loans).

Only 10% of the units in a Section 236 property can be rented to “market renters,” that is, tenants with incomes above 80% of the area median income, as determined by HUD. In 2007, Triton began the process of transitioning Glenview from a Section 236 property to a Low Income Housing Tax Credit (“LIHTC”) property. LIHTC is a federal tax-incentive program designed to encourage private development of low income properties. See Carter v. Maryland Mgmt.

Co., 377 Md. 596, 603 , 835 A.2d 158 (2003). Under this program, a property owner will receive a tax credit if a certain minimum number of residential units in the property are rent-restricted and occupied by people whose incomes do not exceed “sixty percent of the area median income,” as determined by HUD. The property owner then can sell the tax credit to investors to raise capital for improvements to the property. Jackson has been employed by Edgewood since 1979.

From 1990 until her resignation on March 25, 2010, she held the position of community manager for Glenview. At the time of her resignation, she was earning approximately $55,000 annually. As community manager, Jackson was responsible for the day-to-day operations of Glenview, including collecting rent, handling resident complaints and maintenance requests, and reviewing and approving rental applications. Jackson supervised one employee, Paula “Drema” Wagner, a leasing specialist at Glenview, whom Jackson hired in 1990.

Art Wilcoxen was Glenview’s groundskeeper. Before 2009, Jackson’s supervisor was Lisa Davis, an assistant vice-president with Edgewood. During much of that time, Scott Jones was the regional vice-president who super ¹⁸⁵ vised Davis. He has since become Edgewood’s president and chief executive officer.

Jackson received uniformly positive performance evaluations from Davis and Jones. In September of 2009, Arturo “Art” Reyes replaced Davis as Jackson’s direct supervisor. Reyes reported to Norman Azouqha, a regional vice-president who, in turn, reported to George Caruso, Edgewood’s executive vice-president and chief “knowledge officer.” On or about December 7, 2009, Larry Davis, a senior vice-president at Edgewood, and Terrance Kelly, an assistant vice-president at Edgewood, called Wagner and offered her a promotion to the position of community manager at an apartment complex in Capital Heights that Edgewood managed. Wagner declined the promotion for several reasons, including the length of the commute and safety concerns.

Wagner had been living in Glen Burnie for decades, near Glenview. Capital Heights is in Prince George’s County, about 36 miles from Wagner’s home, and in a neighborhood with a high crime rate. On December 10, 2009, Reyes came to Glenview to discuss a tenant complaint with Jackson and to inform Art Wilcoxen, the groundskeeper, that his position was being eliminated. Reyes met with Jackson in her office, which was located at the back of Glenview’s rental office.

He advised Jackson that a tenant, one Mary Barnes, had filed a complaint with the Maryland Commission on Human Relations (“MCHR”) alleging that Jackson had discriminated against her on the basis of her race by failing to handle her maintenance requests promptly. Jackson responded by telling Reyes that Barnes was a problem tenant and offering to show Reyes Barnes’s lengthy tenant file, which documented frequent complaints made by her and by other tenants about her. Reyes asked to see maintenance requests made by Barnes, took certain of the records, and said he would look into the matter. Reyes asked Jackson to call Wilcoxen to her office, which she did.

In Jackson’s office, with the door shut, Reyes informed Wilcoxen that his position was going to be eliminated ¹⁸⁶ on an uncertain date in the future, for budgetary reasons. Reyes said he had wanted to give Wilcoxen a “heads up.” Following this conversation, Wilcoxen walked out of Jackson’s office and into the front reception area, where Wagner’s desk was located. Reyes and Jackson followed him out. Also in the reception area were Rick West, Edgewood’s maintenance supervisor; Penny Ingold, another Glenview employee; a tenant; and a new rental applicant.

Wilcoxen walked over to Wagner’s desk and told her he had just been laid off. Reyes then approached Wagner’s desk. He said, “oh, [I heard] you didn’t take the job transfer.” He sat down in front of Wagner’s desk and asked her why she had declined the transfer. Wagner replied, giving the reasons discussed above.

Reyes told her, “well, due to the fact you didn’t take the transfer, we’re cutting your pay from [$]18 [per hour] down to [$]13 [per hour].” Wagner asked Reyes why her pay was being cut and when this change would go into effect. Reyes simply repeated his previous statement that her pay would be cut. A tenant then walked into Glenview’s office. Wagner tried to get Reyes to “stop speaking.” Wagner said, “excuse me,” and began attempting to assist the tenant.

Nevertheless, Reyes continued to “repeat[ ] what he [had] said,” announcing to Wagner that it was a “a new day,” and budgets were being cut. At this point, Wagner was near tears. Jackson, who, like everyone in the vicinity, had overheard Reyes talking to Wagner, approached Reyes and asked if he’d like to use her office to continue his conversation with Wagner. Reyes declined, saying “we’re almost finished here.” He then walked into Jackson’s office, collected his belongings, and left.

Immediately after Reyes departed, Wagner reported to Jackson that she believed Reyes had discriminated against her on the basis of her gender by speaking privately to a male employee (Wilcoxen) about his job being eliminated but speaking to her about a significant reduction in her pay in front of numerous employees and tenants. Wagner was extremely ¹⁸⁷ upset. Jackson tried to console her, remarking that she “didn’t know why [Reyes] did that.” Later that day, Wagner sat down with Jackson and Wilcox-en to discuss the incident a second time. She expressed the view to both of them that Reyes had “discriminated against [her] because [she] was a woman.” After leaving work for the day, Wagner remained “upset” about the incident with Reyes.

She typed a letter (“the Grievance Letter”) that summarized her encounter with Reyes that day: 3 I Drema Wagner was offered a new position [Community Manager] at another property. I declined the offer to due to having to travel & work at a bad area. I would have to travel 1 hr to Vk hrs one way. I chose to work at Glenview due to I only live 10-15 minutes away, the money I was offered would not even cover my gas expenses.

This position was offered to me by Larry Davis & Terrance Kelly. On Thursday 12/10/2009 Art Reyes, Ms. Jackson supervisor told me due to I declined the job transfer my pay would properly be cut/decreased by $ 5.00 per hour. I ask Mr. Reyes why, Mr. Reyes stated this was a new day, there were budget cuts. Mr. Reyes was explaining this to me in the front office while I was answering the phone & waiting on residents and a co-worker come in and Mr. Reyes kept discussing my personal business.

In order to get Mr. Reyes to stop, I turned to my co-worker spoke to her then turned back to look at Mr. Reyes he paused & continued discussing my personal business. I feel Mr. Reyes should have requested me to go to a private close area to discuss my personal business. I also feel the real reason my current pay maybe cut/decreased because I would not accept the new position. The next day, Friday, December 11, 2009, Wagner gave Jackson the Grievance Letter.

Jackson initialed it and marked it as “received 12/11/09.” ¹⁸⁸ On Tuesday, December 15, 2009, Jackson called Reyes’s supervisor, Azouqha, to report Wagner’s grievance. She advised him that Wagner had “written a discrimination letter against Mr. Reyes” and explained what had happened. She told him that Wagner had said that “she felt she was discriminated against, because of her gender.” Jackson also discussed with Azouqha a conflict she had had with Reyes concerning a repair to Barnes’s apartment. At the end of the conversation, Jackson asked Azouqha whether she should “forward [the Grievance Letter] to [him], or send it to HR.” Azouqha replied that Jackson should put the letter in Wagner’s file and to just try to “get along” with Reyes “until the rehab is over with” (referring to renovations to Glenview that were being undertaken).

Jackson followed Azouqha’s directive and placed the Grievance Letter in Wagner’s file. She also wrote a contemporaneous note “to document the employee file of Ms. Drema Wagner.” It stated: On 12/15/09 at approximately 11:45 a.m., I, Donna L. Jackson, Com. Mgr. for Glenview, called Mr. Norman Azouqha to inform him of a grievance letter Ms. Wagner wrote concerning the transfer offer or possible pay decrease from Mr. Art Reyes. I asked Mr. Azouqha if he wished me to send him a copy through e-mail and send to HR.

Mr. Azouqha told me no and to place it in her employee file. I did as such. Jackson also made a note in a journal she kept to record events for work. This note stated: 12/15/09 I called Mr. Azouqha and told him Mr. Reyes had Rick and 2 men from another property go to 76-101’s [Barnes’s apartment] bathroom and cut out the ceiling when there was no leak nor did the resident ever call in a leak and this to me didn’t look good for Glenview’s staff and could possibly hurt the complaint [Barnes] filed.

I also told Mr. Azouqha Drema had written a complaint about Mr. Reyes due to she was embarrassed on how Mr. Reyes ¹⁸⁹ discussed her personal business in the front office with residents and a fellow employee present. That same day, Jackson told Wagner that she had informed Azouqha of Wagner’s complaint and that he would “take care of it.” Based on her long history with Azouqha, Jackson felt certain that Azouqha would “discuss it with Mr. Reyes.” On December 29, 2009, Glenview received final approval as an LIHTC property. Approximately one month after Jackson reported Wagner’s grievance, on Saturday, January 16, 2010, at 1:23 a.m., Reyes sent an e-mail to Azouqha and Caruso, attaching a draft disciplinary memo against Jackson. The draft memo cited three instances of misconduct by Jackson that warranted disciplinary action.

The first instance concerned acceptance of tenants who did not satisfy the income eligibility requirements for Glenview to be an LIHTC property. In particular, Reyes stated that “Jackson took upon her own to approve and move several applicants to units restricted by income limits and whose incomes were over the allowable incomes under HIJD’s rules and regulations.” The second two instances of misconduct concerned information Reyes claimed to have learned in investigating the Barnes race discrimination complaint. Reyes stated that his investigation revealed that, in managing Glenview, Jackson had not met Edgewood’s policy of providing corrective maintenance to tenants within 48 hours of receiving a complaint; instead, in the past year, maintenance work orders at Glenview had averaged between six to seven days for completion. Reyes further stated that he was of the view that Jackson had lied to an attorney representing Edgewood in the Barnes case when she told the attorney that after Barnes complained of a leak in her apartment the Glenview maintenance staff inspected Barnes’s apartment and did not find any leaks.

According to Reyes, he dispatched a quality control team to Barnes’s apartment and, as Jackson knew, the team discovered a leaking overflow gasket in the bathtub in the apartment above Barnes’s bathroom. Reyes’s draft disciplinary memo stated that disciplinary action was ¹⁹⁰ required due to these “recent incidents and findings” and advised Jackson that the memo served as her “final warning” and that she would need to “immediate[ly] improve [her] unsatisfactory performance” or face “further disciplinary action, up to and including termination of employment.” The memo closed by stating that Jackson’s “work performance ha[d] been of poor and careless performance [sic]” and that “her neglect of duty and misleading of facts could put the owners and the company at risk.” In the e-mail to Azouqha and Caruso attaching the draft disciplinary memo, Reyes stated that the offenses described in the draft memo “could be enough for a termination of employment.” Caruso replied to Reyes’s e-mail two days later. He praised Reyes’s “initial work up,” but disagreed that termination was appropriate as this was the first time Jackson had been disciplined. Caruso suggested they look into transferring Jackson and “watch [Jackson] closely going forward.” He also made some edits to the draft disciplinary memo, including a note directing Reyes to add the names of the market tenants referenced in the memo.

Two days later, on January 21, 2010, Reyes e-mailed Jackson with a number of questions. As relevant here, Reyes commented that three “move ins” in 2009 had been “over the 80% income limits”; named the three market tenants; and asked whether there had been any other market tenants approved since that time. In a reply e-mail sent that day, Jackson told Reyes that the three market tenants to whom he had referred all had been approved before Davis, who, as mentioned, was Jackson’s former supervisor, had directed her by e-mail not to move in anyone else at “Market Rent.” Jackson further stated that no additional market tenants had been approved since that time. Reyes responded by asking Jackson to forward to him the income limits Davis had provided her and the “e-mail in which she [ie., Davis] indicates that no one should move in at market rent.” Jackson did so. ¹⁹¹ On January 25, 2010, Azouqha hand-delivered to Jackson a Disciplinary Action Memorandum.

Reyes and Azouqha were listed as the authors and it was copied to Caruso. It was nearly identical to Reyes’s draft disciplinary memo, but incorporated certain of Caruso’s edits and suggested changes. It closed by advising Jackson that her performance would be reevaluated in 30 days and listing seven areas in which she needed to improve her performance. Three days later, Jackson sent a memorandum addressed to Reyes, Azouqha, and Caruso, and copied to Jones, rebutting the charges in the Disciplinary Action Memorandum.

With respect to market tenants, Jackson explained that she always had complied with the directives she had received from her supervisors regarding income limits for tenants and that the three market tenants in question had been approved in compliance with the directives in effect at that time. Moreover, she asserted that Glenview had been the subject of numerous “audits and reviews” and she “never [had] been told [Glen-view] was not in compliance with the income limits.” With respect to completion of repairs, Jackson stated that the maintenance records Reyes had reviewed reflecting that work orders had taken between five to six days on average to complete were not accurate, due to a data-entry error on her part, which she would correct going forward. Specifically, when closing out work orders using Edgewood’s computer software, she had not changed the completion date. As a result, the completion date reflected the date she had entered a work order as “completed” in the computer, not the date it actually had been completed.

With respect to Barnes’s complaints, Jackson explained Barnes’s history as a “problem resident.” Finally, Jackson denied ever lying to an attorney representing Edgewood in the Barnes discrimination matter. 4 Jackson’s memorandum concluded as follows: ¹⁹² In closing, I would like to thank you for your time in going over my responses to all the above accusations. There may be other reasons as to why Mr. Reyes found it necessary to put in writing these accusations however at this time I wish not to discuss. After your investigation I hope your findings will prevail this should and will be removed from my employee file. I assure you, I will continue to be as I have always been an asset to Glenview Gardens as well as being a dedicated, honest and responsible employee.

(Emphasis added.) On February 1, 2010, Jones e-mailed Reyes and Azouqha and directed them to prepare a “response for [his] signature.” He copied his e-mail to Caruso. Caruso replied that he wished to sit down with Reyes and Azouqha to discuss their response, explaining that because Jackson was “trying to deny responsibility,” it was important that they reply “factually, and carefully.” On February 5, 2010, Reyes e-mailed Charlton. He advised her that Jones had directed him to “move on implementing the plan to change the staff at Glenview” and he was seeking her approval for the planned changes. He stated that, at that time, they did not have “enough to do a termination” of Jackson, but were planning to transfer her to another Triton-owned property, Glenarden, because that property could “ab ¹⁹³ sorb her salary.” Charlton replied three days later, copying Jones, saying that while she was “anxious to get a LIHTC certified manager at Glenview,” it did not seem fair to transfer Jackson to another Triton property in order to “absorb” her salary.

She sought a meeting to discuss the matter further. The following day, February 9, 2010, Jones e-mailed Charlton, explaining that Glenarden was the only possible property to which he could transfer Jackson. 5 He further stated: Please know that we are on the path to terminating Donna’s employment but don’t have enough hard evidence as of today to make it happen. There is one write up in the file and another is being worked on. However, over the next few weeks, I believe that we will have what we need.

Her time at Glenarden would be short. In addition, I have a strong feeling that she may resign when we announce the transfer to her. Her world does not extend beyond Glen Burnie. Charlton responded that if the transfer was to occur, Jackson’s salary would have to be reduced.

On February 24, 2010, Reyes sent Jackson a response memorandum, rejecting each of her explanations and concluding that the disciplinary action was appropriate. The response memorandum further advised Jackson that she was being transferred to the position of community manager for Glenreed Apartments and Charles Landing Apartments. Charles Landing is located in northern Virginia, 34 miles from Jackson’s home. Glenreed is located 36 miles from Jackson’s home in the opposite direction.

Her salary was to be decreased by $5,000 annually “to reflect [her] new responsibilities and to adhere to the approved budget.” The stated reason for this transfer was that Glenview recently had be ¹⁹⁴ come an LIHTC property and Jackson had not passed her LIHTC certification test. 6 Also on that day, Reyes met with Wagner to inform her that the pay cut he previously had discussed with her was going to take effect immediately. The next day, Jackson and Wagner both submitted letters of resignation. Jackson’s letter was sent to Reyes, Azouqha, Caruso, Jones, and Charlton. It stated: After 31 years of dedicated service to Glenview Garden Apartments it brings me great sadness that due to an unnecessary job transfer I am being forced to take which I feel has been brought on by retaliation, I must resign.

This will serve as a thirty day notice that my last day will be March 25, 2010. I have elected to give a thirty day notice instead of the normal two weeks due to the property is currently under rehab and I want the owner to have time to find someone else to fill my position. Wagner’s letter was sent to Jackson, Reyes, Azouqha, Jones, and Charlton. It described the December 10, 2009 incident with Reyes, her Grievance Letter, the fact that Jackson had reported her grievance to Azouqha, and that Azouqha had directed Jackson not to forward the Grievance Letter to him or to HR.

On February 29, 2010, Azouqha and Reyes each responded to Wagner’s letter of resignation. In Azouqha’s response, he accepted Wagner’s resignation and stated that he “was never aware nor I have [sic] received any complaint referencing your ¹⁹⁵ allegations that Art Reyes met with you in the front office.” He also denied having any knowledge of her Grievance Letter. In Reyes’s response, he acknowledged having discussed Wagner’s transfer in the reception area, but said that Wagner had initiated the conversation by telling Reyes she had declined the transfer. Reyes claimed that he had been unaware that Wagner even had been offered a transfer prior to that time.

He denied having spoken to Wagner about a reduction in her salary in the reception area at Glenview. He stated that he had met with her privately in Jackson’s office to inform her of the salary cut and again on February 24, 2010, when he had told her the salary reduction was to become effective. Jackson’s last day was March 25, 2010. On September 3, 2010, Jackson filed her circuit court complaint asserting one count of retaliation against Edgewood pursuant to SG section 20-1202, for a violation of MCC section 27-19(c).

She alleged that she had opposed an act of sex discrimination by reporting Wagner’s grievance to Azouqha and that Edgewood had retaliated against her for doing so by initiating a disciplinary action against her, transferring her, and decreasing her salary. She further alleged that these actions amounted to a constructive discharge. She sought compensatory and punitive damages and attorneys’ fees. The case was tried to a jury over five days in September of 2011.

At that time, Jackson was 54 years old. She testified and called seven lay witnesses: Reyes, Caruso, Azouqha, West, Wagner, Wilcoxen, and Jones. Reyes and Azouqha each denied having any knowledge of Wagner’s complaint of discrimination when they disciplined Jackson. Caruso testified that he believed Reyes had become aware of Wagner’s complaint in March of 2010.

He acknowledged, however, that he had testified in deposition that Reyes had learned of Wagner’s complaint in December of 2009. Jones testified that he first became aware of Wagner’s complaint when Wagner and Jackson submitted their letters of resignation. ¹⁹⁶ Jackson introduced into evidence e-mail correspondence from February 2010 between Jones, Caruso, Reyes, and Azouqha reflecting that they knew when they decided to transfer her and reduce her salary that she would likely resign as a result. She also introduced into evidence Barnes’s tenant file and internal Edgewood email correspondence demonstrating that she had received conflicting directives from Davis and Jones regarding whether she could approve market tenants in the year prior to her discharge. Jackson also called three expert witnesses.

Phillip Bussey, Ph.D., was accepted as an expert in the fields of vocational rehabilitation, vocational assessment, and vocational counseling and opined that it would take Jackson at least two to three years to find employment commensurate with the work she had performed at Edgewood and that, if she had not found a job in that time period, she might never find an equivalent job given her age and the length of her period of unemployment. Richard Edelman, Ph.D., was accepted as an expert in economics and finance. He opined that if Jackson were unable to find suitable replacement employment, she would sustain economic losses of $568,912. Finally, Liza Gold, M.D., a psychiatrist, opined that Jackson suffered from an “adjustment disorder with depressed mood” as a result of Edgewood’s actions in disciplining and constructively discharging her.

At the close of Jackson’s case, Edgewood moved for judgment. It argued that Jackson had failed to prove that she held an objective, good faith belief that Reyes had engaged in discrimination when she made her report to Azouqha in December of 2009. This was so because neither the Grievance Letter nor Jackson’s contemporaneous notes documenting her conversation with Azouqha mentioned discrimination. Edge-wood further argued that there was no evidence of an adverse action against Jackson because it had offered her a lateral transfer with a slight pay decrease.

Finally, Edgewood argued that Jackson failed to prove that any adverse action was caused by a report of discrimination because the ultimate decision maker, Jones, had no knowledge of Jackson’s report at the time he approved her transfer and salary decrease. ¹⁹⁷ The court denied the motion for judgment. In its case, Edgewood recalled Reyes, Azouqha, and Jones, and called Charlton and the director of Edgewood’s compliance division. Charlton, who as mentioned owned and operated Triton, testified that in the spring of 2009 she discovered that 99 of the 204 units at Glenview were occupied by market renters. As a result, those 99 units would not be eligible for LIHTC tax credits, representing a loss to Triton of $1,000,000 in “tax credit investment equity.” Charlton stated that, after learning this information, she discussed the issue with Davis (Reyes’s predecessor) and with Jones.

Charlton was “insistent” that Glenview have a “tax credit certified” community manager because she expected that Triton’s investor would want a certified manager in place. She also testified that she told Jones that Edgewood would need to eliminate a position at Glenview. Edgewood introduced into evidence a budget that Jones testified he prepared in August 2009. The budget showed a reduction in Wagner’s salary from $18 per hour to $13 per hour; that Jackson’s salary would not increase in 2010; and that Wilcoxen’s position would be eliminated.

Jones stated that these budgetary changes were implemented in February 2010. At the close of all the evidence, Edgewood renewed its motion for judgment on the same grounds previously raised. Edgewood further argued that it had presented evidence of legitimate non-discriminatory reasons for its employment actions. The motion was denied.

On September 26, 2011, the case was sent to the jury on a special verdict form. (We shall discuss the verdict form in more detail, infra.) As noted, the jurors returned a verdict in favor of Jackson, awarding her $500,000 in “economic damages” and $150,000 in “compensatory damages.” On September 27, 2011, Jackson filed a memorandum arguing that she had presented evidence sufficient to support an award of punitive damages. Edgewood filed an opposition three days later. ¹⁹⁸ On October 3, 2011, the court entered the Judgment in favor of Jackson for $650,000. On October 6, 2011, Edgewood filed a motion for JNOV and a 10-day “Motion to Amend Judgment to Conform” with the MCC, which Jackson opposed.

On October 28, 2011, Jackson filed a petition for attorneys’ fees. On February 23, 2012, the court heard argument on the motion for JNOV and the fee petition. It denied the JNOV motion and held the fee petition sub curia. On March 8, 2012, the court heard argument on the motion to amend the Judgment.

It held the matter sub curia. On March 21, 2012, Edgewood noted an appeal from the Judgment entered on October 3, 2011, and the order denying its motion for JNOV. On April 23, 2012, the court issued a memorandum opinion and order granting Edgewood’s motion to amend the Judgment. The court directed that the jury’s verdict “be reduced ... to $89,195.00, an amount equaling a two year cap on back pay less [Jacksonj’s unemployment compensation.” The Amended Judgment was entered that same day. 7 On April 30, 2012, Jackson noted a cross-appeal.

On December 21, 2012, the court issued an order awarding Jackson $219,569.10 in attorneys’ fees and $76,640.60 in costs. Jackson also noted an appeal from that order, but, as mentioned, that appeal is not before us at this time. ¹⁹⁹ We shall include additional facts in our discussion of the issues. DISCUSSION APPEAL I. Legal Sufficiency of the Evidence For a number of related reasons, Edgewood contends the evidence at trial was legally insufficient to prove Jackson’s claim for discrimination based on retaliation. Before turning to Edgewood’s specific arguments, we shall set forth the law governing Jackson’s retaliation claim.

Jackson filed suit pursuant to SG section 20-1202, which provides, in relevant part, that a person that is subjected to a discriminatory act prohibited by the county code [in Howard, Montgomery, or Prince George’s County] may bring and maintain a civil action against the person that committed the alleged discriminatory act for damages, injunctive relief, or other civil relief. In her complaint, Jackson alleged that Edgewood had committed a discriminatory act in violation of MCC section 27-19(c). As relevant here, that section prohibits an employer from “retaliating] against any person for ... lawfully opposing any discriminatory practice prohibited under this division.” Discrimination on the basis of sex is a prohibited practice. MCC § 27-19(a).

To establish a prima facie case of discrimination based on retaliation, a plaintiff must produce evidence that she engaged in a protected activity; her employer took an adverse action against her; and her employer’s adverse action was causally connected to her protected activity. Taylor v. Giant of Maryland, LLC, 423 Md. 628, 658 , 33 A.3d 445 (2011) (citing Manikhi v. Mass Transit Admin., 360 Md. 333, 349 , 758 A.2d 95 (2000)); Killian v. Kinzer, 123 Md.App. 60, 68 , 716 A.2d 1071 (1998). If a plaintiff meets this threshold burden of ²⁰⁰ production, the burden of production then shifts to the defendant to offer a non-retaliatory reason for the adverse employment action. See Killian, 128 Md.App. at 68, 716 A.2d 1071 ; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). 8 If the employer does so, the burden of production shifts back to the plaintiff to show that the proffered reasons for the employment action were a mere pretext.

Killian, 123 Md.App. at 68 , 716 A.2d 1071 . As this Court explained in the context of a claim for employment discrimination on the basis of disability: “Pretext might be established by showing ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.’ ” Nerenberg v. RICA of S. Md., 131 Md.App. 646, 675 , 750 A.2d 655 (2000) (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3rd Cir.1994)). In the instant case, Edgewood argues that Jackson failed to make out a prima facie case of retaliation because the evidence was legally insufficient to prove that she engaged in a protected activity; that she was the subject of an adverse employment action; and, even if there were sufficient proof of those elements, that there was a causal connection between her protected activity and the employment action. Edgewood further maintains that, even assuming for the sake of argument that Jackson made a threshold showing of retaliation, it produced evidence of several non-discriminatory reasons for its employment actions against Jackson and Jackson failed to prove that any of these reasons were pretextual.

Thus, the trial court erred in denying its motions for judgment and for JNOV. ²⁰¹ Jackson responds that she presented relevant and competent evidence legally sufficient to prove that she engaged in protected “oppositional” activity by making a report of sex discrimination on behalf of a subordinate employee; that Edgewood reduced her salary and transferred her to a less desirable placement; that this transfer and pay cut were intended to and did in fact cause her to resign, amounting to a constructive discharge; and that her constructive discharge was causally connected to her protected oppositional activity. She maintains that Edgewood’s proffered explanations for its adverse employment actions were amply rebutted by evidence she produced and were shown to be pretextual. “In a jury trial, a party may move for judgment notwithstanding the verdict only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion.” Md. Rule 2-532(a). “We review the denial of a motion for judgment and a motion for judgment notwithstanding the verdict (“JNOV”) under the same appellate lens.” Giant Food, Inc. v. Booker, 152 Md.App. 166, 176 , 831 A.2d 481 (2003). We must affirm the denial if “the record discloses any legally relevant and competent evidence, however slight, from which the jury rationally could have found as it did.” Jacobs v. Flynn, 131 Md.App. 342, 353 , 749 A.2d 174 (2000); see also Univ. of Md. Medical Sys. Corp. v. Gholston, 203 Md.App. 321, 329 , 37 A.3d 1074 , cert. denied 427 Md. 65 , 46 A.3d 406 (2012) (“In a civil case, the evidence is legally sufficient to support a finding in support of the prevailing party if, on the facts adduced at trial viewed most favorably to that party, any reasonable fact finder could find the existence of the elements of the cause of action by a preponderance of the evidence.”) A. Jackson’s Prima Facie Case 1.

Protected Oppositional Activity An employee’s complaint about an employer’s allegedly discriminatory conduct, whether through formal or informal grievance procedures, constitutes protected oppositional ²⁰² activity. Crawford v. Metro. Gov’t of Nashville, 555 U.S. 271, 276, 129 S.Ct. 846 , 172 L.Ed.2d 650 (2009) (employee’s report of incidents of sexual harassment during an internal review is protected activity under Title VII). A plaintiff must show that he or she held a good faith, subjective, and objectively reasonable belief that the employer engaged in discriminatory conduct.

Peters v. Jenney, 327 F.3d 307, 320-21 (4th Cir.2003). The evidence at trial, viewed in a light most favorable to Jackson, showed that on December 10, 2010, she witnessed Reyes discuss in close succession planned changes in employment with two employees—Wilcoxen, a male, and Wagner, a female. Reyes met privately with Wilcoxen in Jackson’s office, and told him about his impending lay-off. Moments later, in a central area of the Glenview office that was not private and in which employees, tenants, and prospective tenants were present, Reyes loudly criticized Wagner for declining a transfer to another office for personal reasons and announced that her salary was going to be reduced, specifying the amount of the reduction.

Immediately thereafter, Wagner told Jackson she thought that Reyes had treated her differently from Wilcoxen because of her gender. This evidence, if credited by the jurors, was legally sufficient to show that, based on what she witnessed and Wagner’s stated reaction to her treatment by Reyes, Jackson held a subjective and objectively reasonable belief that Reyes had discriminated against Wagner based on her gender. Jackson testified that, on December 15, 2009, consistent with Edgewood’s internal policies, she called Azouqha, Reyes’s immediate supervisor, and reported to him that Wagner had made a complaint of sex discrimination. Although Azouqha denied this in his testimony, the jurors were free to reject Azouqha’s testimony and credit Jackson’s testimony instead.

On this evidence, reasonable jurors could find by a preponderance of the evidence that Jackson engaged in protected oppositional activity by opposing an act of discrimination on the basis of sex. ²⁰³ 2. Adverse Action Edgewood argues that none of the employment actions it took with respect to Jackson rose to the level of an actionable adverse action. Jackson responds that she needed only to show that she was subjected to an employment action that a “reasonable employee would have found ... materially adverse,” i.e., an action that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe R. Co. v. White, 548 U.S. 53, 60 , 126 S.Ct. 2405 , 165 L.Ed.2d 345 (2006) (internal citations omitted). We agree with Jackson that she satisfied her burden.

At the time Jackson reported Wagner’s grievance, she had been employed by Edgewood for thirty years, all at Glenview, and had been working as the community manager for Glen-view for 20 years. She never had been disciplined. She lived in Glen Burnie, very near Glenview. In January and February of 2010, Jackson was disciplined for poor and careless performance, was told that the disciplinary action constituted a “final warning,” was directed that she must immediately improve her performance or risk termination, and then was informed that she would be transferred to a position managing two properties, one located in Virginia, more than 30 miles from where she lived, and another also located in Virginia, more than 35 miles away from Jackson’s residence, in the opposite direction; and would have her salary reduced by $5,000.

The evidence most favorable to Jackson showed that Jones and Reyes were trying to engineer the termination of Jackson’s employment and they expected that she would resign upon being told that she was being transferred to the two distant properties that would result in at least a 70-mile-per-day drive to and from work and her pay being cut. In fact, what Jones and Reyes wanted to happen, and expected to happen, did happen. Jackson tendered her notice of resignation the day after she was told she was being transferred and her pay was being cut. This evidence plainly was sufficient to prove that Jackson suffered an adverse employment action.

See, e.g., Moniodis v. Cook, 64 Md.App. ²⁰⁴ 1, 11 , 494 A.2d 212 (1985) (evidence that an employer altered an employee’s working conditions with the expectation and intention that it would cause the employee to resign sufficient to prove constructive discharge). 3. Causal Connection Edgewood argues that even if the first two elements of Jackson’s claim were satisfied, the evidence nevertheless was legally insufficient to show a causal connection between Jackson’s protected oppositional activity and her constructive discharge. This is so, Edgewood maintains, because it was undisputed that the “actual decisionmaker”—Jones—had no knowledge that Jackson had reported Wagner’s complaint of discrimination against Reyes until after Jackson submitted her resignation. Edgewood further argues that Jackson’s neglect of the income limitations in approving rental applications for Glenview and her failure to achieve tax-credit certification were the but-for causes of the decision to transfer her and to reduce her salary, and therefore the evidence at trial was not sufficient to show that Jackson would not have suffered these adverse employment actions even if she had not made a report that Wagner had been discriminated against.

Relying on Taylor, supra, Jackson responds that an employee can prove causation by adducing evidence that his or her “protected activity was a ‘motivating factor’ in an employer’s decision to subject [him or her] to an adverse employment action, not necessarily the controlling factor.” 423 Md. at 658 , 33 A.3d 445 . She maintains that Jones’s role as the ultimate decision-maker is not dispositive because she presented evidence that Reyes had initiated the disciplinary action against her, based on his own investigation, and that Jones had relied upon Reyes’s investigation in determining to transfer her, an action that Jones himself had predicted would result in her resignation. Recently, in Staub v. Proctor Hospital, - U.S. -, 131 S.Ct. 1186, 1189 , 179 L.Ed.2d 144 (2011), the Supreme Court considered “the circumstances under which an employer ²⁰⁵ may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.” The Court held that “if a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action and if that act is a proximate cause of the ultimate employment action,” then the employer may be held liable. Id. at 1194 (emphasis in original; footnote omitted).

Moreover, if a supervisor submits a biased report urging an adverse employment action, even if the decision-maker conducts an independent investigation in response to the report and concludes that termination is justified, an employee still may show that the biased report was the proximate cause of the adverse employment action if it was one of many factors considered by the decision-maker. Id. at 1193 . In the instant case, Jackson presented ample evidence that Reyes had knowledge of her report that he had discriminated against Wagner in December of 2009. Jackson testified that she had reported Wagner’s sex discrimination complaint to Reyes’s immediate supervisor, Azouqha, on December 15, 2009.

She further testified that she expected that Azouqha would discuss the complaint with Reyes. Caruso acknowledged testifying in his deposition that he believed that Azouqha and Reyes knew of Wagner’s complaint, via Jackson, in December of 2009. The jurors were, of course, free to reject Reyes’s and Azouqha’s testimony to the contrary. The evidence viewed most favorably to Jackson showed that, just one month after Jackson reported that Reyes had discriminated against Wagner based on gender, Reyes initiated an investigation into Jackson and authored the Disciplinary Action Memorandum citing Jackson for violations of Edge-wood policies and general neglect of her duties.

See Bleich v. Florence Crittenton Servs. of Baltimore, Inc., 98 Md.App. 123, 142 , 632 A.2d 463 (1993) (in wrongful discharge action, temporal proximity between protected activity and discharge was evidence supporting an inference that the protected activity was the proximate cause of her termination.) At that time, he ²⁰⁶ suggested to Caruso and Azouqha that termination was the appropriate sanction against Jackson. Jones testified that he relied upon Reyes’s investigation and his Disciplinary Action Memorandum in approving the subsequent decision to transfer Jackson to a position managing two properties more than 30 miles away in opposite directions, and that he did so with the knowledge that such a transfer likely would result in her resignation. On that evidence, reasonable jurors could find that Reyes instigated the disciplinary action against Jackson and that this act was the proximate cause of Jones’s decision to transfer Jackson, which resulted in her resignation. B. “Mere Pretext” Evidence Having concluded that Jackson’s evidence was legally sufficient to prove a prima facie case of retaliation, we now turn to Edgewood’s contention that the evidence was legally insufficient to prove that the “legitimate and non-retaliatory” reasons for Jackson’s discharge were a pretext.

Edgewood asserts that each justification for the Disciplinary Action— accepting more market tenants than permitted under the Section 236 program, tardiness in having maintenance work orders completed, and lying to the attorney representing Edgewood in the Barnes discrimination complaint case—was borne out by the evidence and was sufficient to justify Jackson’s termination and, unquestionably, a lateral transfer to a less desirable location. Edgewood asserts, moreover, that it showed an independent, non-discriminatory reason that justified Jackson’s transfer to a position at another property. Specifically, Edgewood points to its evidence that, upon discovering that the number of market tenants accepted at Glenview exceeded what was permitted and would result in a $1 million decrease in the number of LIHTC tax credits available to Triton, Charlton personally insisted that Glenview be managed by a tax credit certified manager. Jackson was not tax credit certified. ²⁰⁷ Jackson responds that she rebutted Edgewood’s proffered justifications by showing that her acceptance of the three market tenants in 2009 was done with Davis’s approval (and that Reyes was aware of this fact); that maintenance requests were handled in a prompt fashion and, in any event, that another Edgewood employee, West, bore the ultimate responsibility for fulfilling such requests and was not disciplined; and that her statements to the Edgewood attorney were accurate.

With respect to her lack of tax-credit certification, Jackson points out that, of the two properties to which she was to be transferred, one (Charles Landing) also was an LIHTC property and the other (Glenreed) was in the process of applying to become an LIHTC property. Thus, her transfer to these properties was inconsistent with the stated justification. She asserts that this was evidence of “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in Edgewood’s proffered explanations and, as such, was sufficient to permit reasonable jurors to find by a preponderance of the evidence that the explanations were pretextual. Nerenberg, supra, 131 Md.App. at 675, 750 A.2d 655 (quoting Fuentes, supra, 32 F.3d at 765 ).

We agree. It is a fundamental principle that the weighing of competing inferences to be drawn from evidence of conflicting facts is within the province of the jury: “When the interplay of circumstances is susceptible of different interpretations by rational minds, the problem is essentially one for the jury; the trial judge is not permitted to transform it into a question of law for his own determination. The choice between conflicting facts and the weighing and assessing of competing inferences radiating therefrom is the jury’s province.” Grady v. Brown, 408 Md. 182, 198 , 968 A.2d 1084 (2009) (quoting Rea Construction Co. v. Robey, 204 Md. 94, 100 , 102 A.2d 745 (1954)). Here, the evidence of Charlton’s concern about Jackson’s remaining at Glenview was shaky, at best.

Although Jones testified that he had received complaints from Charlton about Jackson’s performance, he acknowledged that he had no e ²⁰⁸ mails or other documentation to support any such complaint. An e-mail in which Charlton expressed to Jones an interest in getting an LIHTC-certified manager in place at Glenview was sent by Charlton in response to Reyes’s e-mail stating that Edgewood was planning to terminate Jackson and, in the interim, intended to transfer Jackson