Lockheed Martin Corp. v. Balderrama

GRAEFF, J. This case arises from a lawsuit filed in the Circuit Court for Montgomery County by Vincent Balderrama, appellee, against Lockheed Martin Corporation, his former employer, alleging that Lockheed Martin terminated his employment in retaliation for claiming that his negative performance evaluation resulted from discrimination based on national origin. Although Mr. Balderrama also sued on the ground of discrimination based on national origin, the circuit court granted Lockheed Martin’s motion for summary judgment on that claim, finding that there was not legally sufficient evidence to support it. The sole issue presented to the jury was the claim that Lockheed Martin fired Mr. Balderrama in retaliation for making a complaint of discrimination. The jury found in favor of Mr. Balderrama and awarded him $830,000.

On appeal, Lockheed Martin presents several questions for our review, which we have rephrased slightly, as follows: ⁴⁸² 1. Did the circuit court err in finding that Mr. Balderrama’s retaliation claim presented a jury question and in not granting judgment in favor of Lockheed Martin? 2. Did the circuit court abuse its discretion in denying a new trial after the jury awarded $880,000 in damages? 3. Did the circuit court err or abuse its discretion in awarding excessive fees and costs?

For the reasons set forth below, we answer the first question in the affirmative, holding that Mr. Balderrama did not produce sufficient evidence to submit the retaliation claim to the jury. Accordingly, we shall reverse the judgment of the circuit court. 1 FACTUAL AND PROCEDURAL BACKGROUND Background and Early Years Mr. Balderrama stated in his amended complaint that, at the time of filing, he was a 58-year-old Hispanic male. He was hired by Lockheed Martin in 2004 to fill the role of Business Development Manager. In 2007, Mr. Balderrama transferred to the Mission Systems and Sensors Integration Division.

He was tasked -with, inter alia, “identifying and qualifying international sales opportunities of MH-60 Seahawk helicopters for sale to governments of countries in his portfolio.” Mr. Balderrama was a member of “Team Seahawk,” a cooperative enterprise comprised of multiple teams within multiple organizations, with the unifying goal of producing and marketing Seahawk helicopters internationally. 2 During his first five years with the company, Mr. Balderrama was considered a “higher performer.” In 2009 and 2010, however, Mr. Balderrama’s then supervisor, Ron Christensen, ⁴⁸³ gave him a significantly lower performance rating than in previous years. For the 2010 evaluation year, Mr. Christensen gave Mr. Balderrama an overall performance score of 3 out of 5, which corresponds to “acceptable” performance. Mr. Balderrama’s Ratings Continue to Decline Despite Team Seahawk Win In January 2011, Doug Laurendeau replaced Mr. Christensen as Mr. Balderrama’s immediate supervisor. Mr. Laurendeau gave Mr. Balderrama the same “acceptable” score of 3 out of 5 for his performance in 2011.

In 2012, Mr. Balderrama, acting as “business development lead,” was tasked with selling Seahawk helicopters to Denmark. That year, Team Seahawk succeeded in selling nine helicopters to Denmark, a sale of approximately $700 million, which resulted in approximately $130 million in gross revenue to Lockheed Martin. Mr. Balderrama’s customer relationships were credited as having a “tangible impact on the win.” 3 In February 2013, Lockheed Martin issued an “Independent Lessons Learned” document that rated positively Team Sea-hawk’s work on the Denmark “capture.” Despite the significant Team Seahawk “win,” Mr. Balderrama’s supervisors were not satisfied with his performance during that year, particularly his failure to follow management direction and his inability or unwillingness to communicate with his team. Mr. Balderrama would disparage Mr. Laurendeau’s managerial decisions and “bad-mouth” him in conversations with senior members of their Navy customer.

Mr. Laurendeau believed that Mr. Balderrama was either unwilling or unable to create a “political call plan” that would establish acceptable customer “counterparts,” and instead, he contacted those “counterparts” himself. In some instances, Mr. Balderrama violated company policy by contacting senior Navy officials that he was not authorized to engage. Mr. Laurendeau gave Mr. Balderrama a lower performance rating ⁴⁸⁴ for 2012, which placed him in the bottom 10% of employees in his peer group at Lockheed Martin. Prior to notifying Mr. Balderrama of his evaluation, Mr. Laurendeau notified his supervisor, George Barton, and Cindy Gadra, a member of Lockheed Martin’s human resources department.

He stated that, although Mr. Balderrama “brings some significant strengths to the team,” Mr. Balderrama had “not been successful at demonstrating improvement” in areas of development that had been discussed. Mr. Laurendeau expected that Mr. Balderrama would be upset with his performance review, and he proposed a meeting with Mr. Shultz to bring the issue to his attention so Mr. Schultz would not be “blindsided” if Mr. Balderrama reached out to him to challenge his negative evaluation. 4 Mr. Balderrama’s 2012 Performance Review On February 12, 2013, Mr. Laurendeau met with Mr. Balderrama to discuss his performance review for 2012. Mr. Laurendeau credited Mr. Balderrama’s contribution to the Denmark win, but he stated “that’s not everything.” Mr. Laurendeau explained that Mr. Balderrama had not provided him with all the expected plans, and he “tended to do stuff by [him]self’ instead of engaging the whole team. When Mr. Balderrama was asked about his “positioning to win” strategy, he “tend[ed] to just come up with anecdotes and not real facts to support [them].” Mr. Balderrama refuted these criticisms, asserting that he gave Mr. Laurendeau all the requisite plans, and he regularly updated and fully briefed Mr. Laurendeau.

He claimed that the problem was that Mr. Laurendeau did not believe the briefings that he received, and he accused Mr. Laurendeau of being unfair. Mr. Balderrama stated: “I gave you all this information, and I don’t think you’re judging me by the same standard as everybody else.” ⁴⁸⁵ Mr. Laurendeau then reiterated his criticism that Mr. Balderrama failed to engage his team, and Mr. Balderrama did not engage executives and allow them to establish relationships -with their counterparts in Denmark, but rather, he “stifled [management] at every opportunity to do that.” Mr. Balderrama again disputed these allegations. He stated that, even though the Danes with whom they were negotiating stated that they did not want executives “parachuting” into their negotiations, the Lockheed Martin executives nonetheless had numerous opportunities to meet with Danish officials. Mr. Laurendeau credited Mr. Balderrama for knowing a lot of people and “understanding external stakeholders,” but he was not happy that Mr. Balderrama engaged Danish politicians by himself when that role should have been reserved for more senior employees.

He also criticized Mr. Balderrama for failing to “take advantage of the diverse opinions.” He stated that he was getting feedback from the PMT, the program team, and from management that you don’t listen, that you don’t take in people’s advice and you don’t listen to what they’re saying in meetings — you’re talking too much. You’re not getting in the different perspective views of other people. You just have your own agenda and you pursue it, despite what other people are trying to give their opinions on. Mr. Balderrama responded that his meeting with Danish politicians was authorized, and he argued that he had “always taken in people’s opinions,” and he was a “team player,” as well as a “team leader.” Mr. Laurendeau then told Mr. Balderrama that, “when you add all these things up together, the total average comes out to you’re in the bottom ten percent of [your] peer group.” Mr. Balderrama responded: Are you kidding me?

I’m in the bottom ten percent? I mean, we won Denmark. We’ve been a team player with everybody. Everybody except for you [Mr. Laurendeau] seems to think that I did a wonderful job, you know?

I just think you’ve been — I’ve said it before. I think you’re ⁴⁸⁶ prejudiced. I think this whole thing is — you’ve been measuring — this shows you’ve been measuring me by a different yardstick. Mr. Balderrama stated that Mr. Laurendeau was “speaking in generalities,” and he asked for specific examples of misbehavior.

Mr. Laurendeau stated that Mr. Balderrama did not get executive management or other leadership engaged. Mr. Laurendeau advised that his review was “a fair and accurate assessment” of Mr. Balderrama’s performance in 2012. Mr. Balderrama responded: You’ve been prejudiced to me. This is — it’s a pure example again of how you’ve been measuring me by a different yardstick.

You didn’t even look at the facts.... I don’t get it. I don’t understand it. That’s unfair.

You know? I have to do something about this. I can’t let this stand. Mr. Laurendeau asked Mr. Balderrama what he intended to do, and Mr. Balderrama replied that he did not know, but he would talk to Dan Schultz.

Mr. Laurendeau stated that Mr. Schultz was “not in the chain,” to which Mr. Balderrama replied that Mr. Schultz knew him, and he would have to talk to human resources “or something else.” Mr. Laurendeau told Mr. Balderrama that he was “free to talk to HR,” and he referred Mr. Balderrama to Ms. Gadra. Mr. Balderrama signed his performance review on February 28, 2013, after adding the following comments: I refute the evaluation of my supervisor and intend to submit for formal redress and appeal to Human Resources. The evaluation of my supervisor is a prejudiced assessment that failed to accurately recount and assess my contributions and accomplishments. Many of my supervisor’s evaluation comments fail to correlate directly to agreed upon specific measurements of commitment objectives.

Moreover, many of his comments lack specificity and contain broad generalities that can be refuted by facts. I question his general comments that characterize my contributions to strongly imply, if not overtly state, that my leadership of the Denmark campaign lacked early and detailed planning ⁴⁸⁷ and was less than effective. Yet, Denmark was a WIN for MST [Mission Systems and Training] — a win against a lower priced, very aggressive competitor in their own “backyard.” In fact, it was the only Maritime Helicopter win for MST in 2012 and the culmination of a five-year campaign. My supervisor makes numerous claims of my lack of engaging the “broader organization”; yet he has never defined the “broader organization”.

My capture execution directly engaged the counsel and support of the expanse of LM to include functional organizations, programs ... as well as Team Seahawk teammates from the Navy, Sikorsky and other U.S. Industry and Danish Industry. That seems to me to be the “broader organization.” My supervisor claims that I was less than responsive in providing [a Price/Position-to-Win strategy], offset plans, political plans, and media plans yet I can provide numerous revisions of all those plans that had been provided to my supervisor. My supervisor repeatedly makes claims that I failed to make plans or enable appropriate relationships to be established by senior management. This claim once more reveals my supervisor’s continued failure to understand and accept the cultural Danish attitudes and desires in contact with politicians and key stakeholders.

Moreover it reveals his failure to acknowledge that senior management and executives were exposed to Her Majesty, the Queen of Denmark, on multiple occasions the Danish Ambassador to the U.S. and his Defense Attaché ... and they were also introduced to the majority of the Danish Defense Committee. These aforementioned factual examples are just a few counterpoints to inaccuracies or misrepresentations by my supervisor of my performance and contribution in 2012. A more detailed reclama will be provided to Human Resource along with a request for independent review and adjustment upward of my performance evaluation. 5 ⁴⁸⁸ On March 1, 2013, Mr. Laurendeau forwarded his comments to Ms. Gadra in human resources. 6 Mr. Balderrama Appeals His 2012 Performance Evaluation On March 5, 2013, Mr. Balderrama emailed Ms. Gadra, indicating his desire to file an appeal of his 2012 performance evaluation. He stated that his “reclama” would “assert that the evaluation of [his] supervisor [was] a prejudiced assessment that failed to accurately recount and assess [his] contributions and accomplishments.” 7 On March 15, 2013, Mr. Balderrama emailed a sixteen-page reclama to Ms. Gadra.

In the body of the email, Mr. Balderrama noted the following: I have thought long and hard on whether to pursue an effort to seek redress of my supervisor’s evaluation of my performance in 2012. Given the state of our business and future outlook I feel I cannot let it stand. To do so places me at ⁴⁸⁹ great risk to my career and future opportunity in the Corporation. 8 In his “reclama,” Mr. Balderrama responded to each of Mr. Laurendeau’s criticisms noted in his performance review. For example, he argued that Mr. Laurendeau’s “claim that [Mr. Balderrama’s] lack of inclusion of others’ opinions and collaboration is unsubstantiated.

If anything, his claim is directly related to [their] personal disagreements on the best way to pursue and win Denmark.” Moreover, he “especially refute[d] [Mr. Laurendeau’s] comment that [their] campaign was ‘less than effective,’ ” stating: “How much more effective can you get than by Winning the pursuit?” He requested review of his evaluation and sought “to strike this evaluation from [his] record.” Mr. Balderrama made no indication at this time that he was alleging discrimination on the basis of age, race, ethnicity, national origin, or other protected class. Mr. Balderrama later emailed Ms. Gadra, offering to provide her evidence that he believed would substantiate his complaints. On March 15, 2013, Ms. Gadra began an investigation of Mr. Balderrama’s claims. Based on his appeal, she was not investigating a complaint of discrimination, but rather, she was investigating “an appeal to the performance review system.” Ms. Gadra interviewed Mr. Balderrama and four of his coworkers: George Barton (Mr. Laurendeau’s boss); Jack McCreary; Tom Kane; and Andy Cox. 9 Although some comments were positive, several co-workers advised that Mr. Balderrama was difficult to get along with and caused frustration.

For example, one person stated: Mr. Balderrama was asked to set up executive calls for a “cap ⁴⁹⁰ ture,” but he said “no.” This person also stated that Mr. Balderrama was untrustworthy, noting that Mr. Balderrama gave “bad information and sometimes made up things, spinning things rather than providing facts.” Other comments included criticism of Mr. Balderrama’s communication and social skills, including that any communication with Mr. Balderrama was one way, and Mr. Balderrama told “everyone else what to do” and did not listen to other people’s ideas. After concluding her interviews, Ms. Gadra created a document that contrasted Mr. Balderrama’s assessment of his performance with Mr. Laurendeau’s assessment. She followed-up with Mr. Laurendeau to “get his feedback on where there were gaps in their assessments].” She then summarized her investigation, formed an assessment of Mr. Balderrama’s appeal, and submitted a report to Lockheed Martin’s Equal Employment Opportunity (“EEO”) office, which was “standard practice for every performance rating appeal.” In response to questions listed on the report, she stated that no protected characteristics were mentioned and there were no indicators that the complaint involved any protected characteristics. Ms. Gadra concluded that Mr. Balderrama’s “performance evaluation for 2012 would stand,” which meant that his rating would remain in the bottom 10% tier.

On April 10, 2013, Ms. Gadra spoke with Mr. Balderrama to discuss the results of her investigation. Ms. Gadra testified that, during that phone call, Mr. Balderrama reiterated that the 2012 performance review was a “prejudice[d] assessment.” Ms. Gadra asked him what he meant by “prejudice,” and Mr. Balderrama responded that he felt “pressured.” Mr. Balderrama never mentioned race, national origin, ethnicity, or any other protected characteristic. She stated that [t]he term prejudice can mean many different things. It was never stated anywhere that Mr. [Balderrama] felt he was prejudiced against.

He stated it was a prejudiced assessment. In other places he stated it was an unfair assessment, a distorted assessment. That term seemed to be interchangeable with those other terms and he went on ⁴⁹¹ to be very specific about what he disagreed with in the assessment. So my focus was on the assessment.

Mr. Balderrama agreed that he never explicitly mentioned a protected characteristic. He stated, however, that he expected that Ms. Gadra, “as an HR experienced, very senior person, who she said has gone through a lot of these things,” would understand what prejudice meant from a Hispanic male. Ms. Gadra testified that, during her conversation with Mr. Balderrama, he stated that he would have to continue appealing because she set him up and put him in “a precarious position in the event of layoffs.” In her notes from the conversation, Ms. Gadra concluded that Mr. Balderrama was “not taking responsibility for his actions,” “[ijssues are others [sic] fault, not his,” and “[i]t’s unlikely there will be performance improvement in 2013 based on this discussion.” Mr. Balderrama Seeks Further Review, Alleging National Origin and Age Discrimination On April 11, 2013, Ms. Gadra emailed Mr. Balderrama to inform him that Melonie Parker was the director of Lockheed Martin Human Resources, and if he planned “to escalate the decision further,” he should contact Ms. Parker. He advised that he did wish to pursue the matter.

Ms. Gadra’s entire file, including Mr. Balderrama’s reclama, Ms. Gadra’s notes, and her report, was then sent to Ms. Parker. Ms. Parker did not conduct any further investigation. She stated that she reviewed all the documentation related to Mr. Balderrama’s appeal and was “very comfortable with the case.” On May 9, 2013, Ms. Parker called Mr. Balderrama to discuss his appeal. Mr. Balderrama told Ms. Parker that he felt that his low 2012 rating was due to discrimination based on his national origin and age.

Ms. Parker asked him if he could provide her with any specific examples of discrimination, but he could not. Based on her review of Ms. Gadra’s file and report, she told Mr. Balderrama that she did not believe that ⁴⁹² his negative performance review was a result of age or national origin discrimination. When she concluded her conversation with Mr. Balderrama, however, Ms. Parker contacted the senior manager of their EEO office, Sue Heisler, and advised her that Mr. Balderrama believed his rating was based on national origin and age discrimination. She explained that her role in the process was to review Ms. Gadra’s investigation to confirm whether Mr. Balderrama’s performance rating was appropriate, and when Mr. Balderrama alleged age and national origin discrimination, she turned that aspect of his complaint over to their EEO office for further investigation.

On June 6, 2013, Mr. Balderrama sent Ms. Parker an email containing a list of persons that he recommended she interview regarding his performance review. He noted that “[t]his senior, peer and teammate group can provide testimony on the completeness and effectiveness of our effort with respect to Denmark and the senior management internal tension that was prevalent.” He also offered to provide documentation to refute the allegedly “late, incomplete and ineffective” plans that Mr. Laurendeau noted in Mr. Balderrama’s performance review. Mr. Balderrama did not indicate that any of these witnesses could corroborate his claims of age or national origin discrimination. On June 14, 2013, Ms. Heisler emailed Ms. Parker and Ms. Gadra with the results of her EEO investigation.

Ms. Heisler stated the following: I looked at his [Calibration Peer Group (“CPG”) ] and the question of Race/Age being a factor. His CPG is comprised of all people in their Mid-50’s and above and age does not appear to be an issue. Regarding race, there is a reasonable distribution among the various ratings (minorities are represented in all tiers). This, combined with the feedback from multiple sources on his performance indicates to me that there is not a reason to feel his rating/tier is based on either age or race. ⁴⁹³ Because he reached out to [Ms. Parker], she ... should close with [Mr. Balderrama] and indicate that we looked into the possibility of race/age being a factor in his performance rating/tier and found that the rating was based on substantiated performance rather than age/race.

June-October 2013 In June 2013, Lockheed Martin issued a revised, final version of its “Lessons Learned” document for the Denmark initiative, a document regularly created to discuss what the company needed to “do better going forward.” The original document, created in February 2013, rated Team Seahawk’s performance positively in all categories. After reviewing the initial document, Michelle Evans, Vice President of Lockheed Martin, felt that it was inadequate and incomplete because it lacked input from key individuals who could provide additional insight. She noted that “[t]here had been a lot of discussion and contention through the whole bid over the price to win, and ... the lessons learned didn’t accurately reflect all of the dialogue contention that I continued to see through the whole campaign ... and acquisition process.” Ms. Evans “asked the team to go back and do additional interviews, and really make sure it was a thorough work product of what did we learn” and “what could we have done better.” The re-vised version of the Denmark “Lessons Learned” document was more critical of the team’s performance, including the “Customer Relationships,” “Shape-the-Game & Win Strategy,” and the “Positioning-To-Win (PTW) Goals” categories. The document cited the lack of (1) involvement of senior management with leadership, and (2) internal consensus on the PTW as areas that needed improvement.

On June 20, 2013, Jack McCreary, Program Director, sent an email to Mr. Laurendeau about Mr. Balderrama. He stated that his week with Mr. Balderrama “alternated from extremely frustrating to an acceptable level of support.” On July 22, 2013, Mr. Laurendeau met with Mr. Balderrama to conduct an interim performance review pursuant to the ⁴⁹⁴ informal coaching regime that had been implemented to identify deficiencies and expectations. Mr. Laurendeau advised Mr. Balderrama that several of his commitments were at risk of not being successfully completed, that Mr. Balderrama “was still falling short of the bar,” and he wanted assurances that Mr. Balderrama intended to meet his performance goals. Mr. Balderrama again disagreed with Mr. Laurendeau’s criticisms, arguing that he had not completed certain tasks because he had to “start from scratch,” and complaining that Mr. Laurendeau was blocking him from contacting people outside the company.

Mr. Balderrama stated that Mr. Laurendeau was “treating [him] differently from the other guys,” and he argued that Mr. Laurendeau did not require his predecessors to perform the same tasks. Mr. Laurendeau testified that, because there was a lack of commitment by Mr. Balderrama to work on the issues, they decided to make the “performance improvement regime” more final for Mr. Balderrama. Mr. Laurendeau stated that, at this point, he was not aware that Mr. Balderrama had made a complaint of age and national origin discrimination, and he was not aware that the company was going to go through a reduction in force. On September 4, 2013, Ms. Gadra learned that Mr. Balderrama was part of the “Special Recognition Award Team” that was scheduled to receive an award for the Denmark win.

She testified that she was concerned that giving Mr. Balderrama an award at the same time that they were putting him on a performance improvement plan would send mixed messages. Ms. Parker also was concerned about sending the “wrong message” to Mr. Balderrama. Mr. Balderrama’s supervisors decided, however, that he was a “major contributor” to the Denmark win, and he was included in the award. On September 5, 2013, Ms. Parker met with Mr. Balderrama to “close out” his appeal.

Ms. Parker informed him that his bottom 10% rating was “substantiated and won’t be changed.” She informed Mr. Balderrama that she was “the ⁴⁹⁵ last step” in the appeals process, and therefore, his appeal had reached its conclusion. On October 1, 2013, due to Mr. Balderrama’s “continued need for performance improvement,” Mr. Laurendeau placed him on a 90-day PIP. Mr. Laurendeau was not aware at this time that Lockheed Martin was planning on reducing its workforce. Lockheed Martin Includes Mr. Balderrama in its Reduction in Force On October 16, 2013, Lockheed Martin issued a memorandum stating that, due to “ongoing uncertainty in Washington regarding the budget, sequestration and government operations,” it was going to “lay off approximately 600 U.S. employees.” Michelle Evans, vice president of Lockheed Martin and Mr. Balderrama’s third-level supervisor, testified that the employees who were to be terminated were selected using a “reduction in force” (“RIF”) tool that was developed by Lockheed Martin to aid in the RIF process.

She testified that the RIF tool used objective criteria to assess employees, including the average performance review scores for each employee from the last three years. 10 Lockheed Martin’s managers then updated the performance scores of each of their subordinates, rating them on five skills that were considered critical for each department. The skill set for business development employees included, among others, effective communication skills and being a team player. The tool calculated the scores, indicating whether any particular manager was scoring unusually high or unusually low. Lockheed Martin executives could then review the employee performance scores, which were calculated to reflect each employee’s performance over the past three years. ⁴⁹⁶ In mid-October, Mr. Laurendeau and the company’s other managers were asked to review the skills of each of the employees working under them.

The initial skill ratings for each employee in the RIF tool were pre-populated, i.e., the tool had a complete set of employee scores already filled-in before Mr. Laurendeau began his review. 11 Mr. Laurendeau was asked simply to see if the skill ratings “were still appropriate, and, if not, to update them, and change them.” Mr. Laurendeau adjusted one employee’s scores down (indicating poorer performance) and two employees’ scores up (indicating positive performance). Mr. Laurendeau did not make any adjustments to Mr. Balderrama’s skill scores. Ms. Parker, Mr. Barton, and Ms. Evans testified that the final decision regarding who would be laid off was Ms. Evan’s decision. Ms. Parker and Mr. Barton, however, had a role in the RIF process.

Ms. Parker’s role included providing Ms. Evans with information about the company’s poorest performers. On September 27, 2013, shortly before the reduction in force announcement was made, Ms. Evans emailed Ms. Parker, asking her for a list of “low performers” that management could consider, acknowledging that they “spoke of Vince Balderrama.” Ms. Evans stated that they recently had gone through another RIF, so she “kind of knew who [the] bottom performers were, and who was at risk.” Ms. Parker testified that she had discussed Mr. Balderrama with Ms. Evans as a low performer in the business development organization, but she never spoke to Ms. Evans about Mr. Balderrama’s complaints of discrimination. She stated that she “would never share that information.” Mr. Barton testified that his limited involvement in the RIF process began after the managers, including Mr. Laurendeau, completed their review and update of their employees’ current ⁴⁹⁷ performance scores. At that point, once the scores were calculated by the RIF tool, Mr. Barton gathered his “seven directors to take a look [at the scores], to make sure nobody was grading too hard or too easy and make sure that it was fair.” Mr. Barton testified that they made no changes to the scores, and the RIF process proceeded to Ms. Evans for her review.

Mr. Barton had read Mr. Balderrama’s “reclama,” and he was aware that Mr. Balderrama intended to appeal the matter to human resources, but he was not aware at that time that Mr. Balderrama had alleged national origin and age discrimination. During the meetings in which layoffs were discussed, no mention of Mr. Balderrama’s complaints or appeals was made. The RIF tool rated employee skills on a five-point scale, with a “1” being the best. Of the fourteen employees within the job group “BD Analyst SAS Helicopters,” Mr. Balderrama’s total score of 3.24 was the worst score in his group, and it was significantly higher than the score of the second worst employee.

This total score was due, in part, to Mr. Balderrama’s poor performance history over the past three years, which averaged 3.33. On November 1, 2013, Ms. Evans made her final decision regarding the employees she intended to lay off. On that date, she sent an email to her boss, Paul Lemmo, with a list of nine “business development” employees that were to be included in the RIF, one of whom was Mr. Balderrama. Mr. Lemmo stated that he was “a little surprised at [Mr.] Balderrama as he used to be a high performer.” Ms. Evans replied that Mr. Balderrama “had worked for multiple [managers] in just a few years.

Having now worked for the same [manager] for [more than two years, she thought that] he [was] being fairly assessed.” Ms. Evans later testified that, upon reviewing Mr. Balderrama’s placement at the bottom of his group in the RIF tool, she had no concerns about laying him off because his score “seemed consistent with what [she] had observed” and what was being relayed to her. Ms. Parker similarly stated that ⁴⁹⁸ Mr. Balderrama was selected for the RIF because, based on the RIF tool formula, he was ranked as the lowest performer in his group. Ms. Evans testified that she was not aware that Mr. Laurendeau placed Mr. Balderrama on a performance improvement plan in October 2013. On November 6, 2013, Mr. Balderrama was notified that he was included in the RIF.

Mr. Balderrama Obtains New Employment Outside the Defense Industry After he left Lockheed Martin, Mr. Balderrama remained unemployed for approximately four months. During that time, Mr. Balderrama interviewed with several helicopter manufacturing companies. He was told by those interviewers that he was “great” and “good,” but they asked him to “come back in November or December.” Mr. Balderrama eventually accepted a job working as a fundraiser for the U.S. Naval Academy, a position that paid approximately 40% less than he earned at Lockheed Martin. Although Mr. Balderrama was not under contract, he testified that he made an “honorable commitment” to his boss at the Naval Academy, who was a former classmate, to stay with the Naval Academy during their current fundraiser, which was estimated to last for three to five years.

Accordingly, Mr. Balderrama stopped looking for work in the defense industry after accepting the position at the Naval Academy. Mr. Balderrama Sues Lockheed Martin for Employment Discrimination On July 29, 2014, Mr. Balderrama filed a lawsuit against Lockheed Martin. He identified himself as a 58-year-old Hispanic male, and he asserted two counts. Count I alleged discrimination based on national origin and ancestry, asserting that he was issued a negative performance review, whereas other, non-Hispanic employees were not issued negative performance reviews, and he “was the only individual out of the group of similarly situated employees terminated in the Reduction in Force (“RIF”) action.” Count II alleged violation of Montgomery County Code (“MCC”) § 27-19, asserting that ⁴⁹⁹ he was terminated because of his protected activity in appealing his performance review based on national origin and ancestry discrimination.

Lockheed Martin subsequently filed a motion for summary judgment, arguing that there was no evidence that demonstrated that Mr. Balderrama’s superiors (1) knew of his protected activity when they terminated him, (2) had any bias against him based on national origin or national origin, or (3) tried to improperly influence Ms. Evans’ RIF decisions. Lockheed Martin also argued that, even if Mr. Balderrama could establish a prima facie case, Lockheed Martin would still prevail because the RIF was a sufficient non-discriminatory explanation for Mr. Balderrama’s termination, which Mr. Balderrama had not disputed. Mr. Balderrama argued that summary judgment was not appropriate because there was sufficient evidence that his superiors had a discriminatory bias against him and knew that he was engaging in protected activity. On February 27, 2015, the circuit court granted Lockheed Martin’s motion with respect to Count I (discrimination), finding that there was no genuine dispute of material fact and the evidence was legally insufficient to support that count.

It denied the motion with respect to Count II (retaliation), however, stating that a “jury may ... find that the plaintiff was retaliated against because he complained about alleged discrimination based on national origin.” A five-day trial on the retaliation claim ensued. At the close of Mr. Balderrama’s case, Lockheed Martin moved for judgment, asserting that Mr. Balderrama failed to establish a prima facie case of retaliation or any retaliatory pretext because he adduced no evidence that could lead the jury to conclude that Ms. Evans, the person solely responsible for laying off Mr. Balderrama, was aware that Mr. Balderrama was engaged in protected activity. The court asked Lockheed Martin to distinguish Edgewood Management Corporation v. Jackson, 212 Md.App. 177, 199-200 , 66 A.3d 1152 , cert. denied, 434 Md. 313 , 75 A.3d 318 (2013), which held that, even if the ⁵⁰⁰ supervisor who made the ultimate firing decision was not aware of the complaint of discrimination, a company could be liable if another employee, motivated by discriminatory or retaliatory animus, influenced or played a role in the employee’s termination. The court described the Edgewood scenario as a “poison pill” or a “snowball rolling downhill,” suggesting that a manager such as Mr. Laurendeau, even though he was not involved in the RIF process, could nonetheless retaliate by tainting the process early on with a falsely negative performance review (“poisoning”), and then passing this information up the chain of command, paving the road for Mr. Balderrama’s ultimate termination.

Counsel for Lockheed Martin attempted to distinguish Edgewood, noting that the claim of discrimination based on natural origin had been dismissed, and the only claim left was for retaliation based on protected conduct. Because Mr. Laurendeau issued the 2012 performance review prior to any protected conduct (which occurred when Mr. Balderrama claimed discrimination based on national origin in May) this case was different from Edgewood. Counsel argued that, because the evidence demonstrated that Ms. Evans did not have knowledge of Mr. Balderrama’s complaints, there was no proof of retaliatory motive by Ms. Evans, and Mr. Balderrama’s case lacked causation. The court denied Lockheed Martin’s motion for judgment. 12 At the close of evidence, Lockheed Martin stated that it was renewing its motion for judgment, without making additional argument.

The court did not expressly rule on the renewed ⁵⁰¹ motion, but it denied the motion by implication when it sent the case to the jury for deliberation. 13 After the jury verdict in favor of Mr. Balderrama, Lockheed Martin filed a motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a motion for a new trial. It argued, inter alia, that Mr. Balderrama failed to