Magee v. Dansources Technical Services, Inc.

ADKINS, Judge. We must decide whether summary judgment was appropriate in this employment termination case alleging hostile environment, quid pro quo, and retaliatory sexual harassment. Anna C. Magee, 1 appellant, appeals from summary judgments entered in favor of her former employer DanSources Technical Services, Inc. (“DTSI”), appellee, on all three sexual harassment counts of her complaint, as well as counts alleging abusive discharge and violation of Maryland’s Wage Payment and Collection Law. 2 We find that there was ample evidence to create a dispute regarding the central question in this case— why Magee was fired. In doing so, we reject DTSI’s argument that the so-called “same actor inference” overcame this evidence on summary judgment, because “where the same person hires and fires an employee it is not ‘so probable’ that the discharge was not motivated by discrimination that we ought to assume it is so in every case.” Molesworth v. Brandon, 341 Md. 621, 644 , 672 A.2d 608 (1996).

We shall reverse the judgments on all five counts of the complaint. FACTS AND LEGAL PROCEEDINGS Daniel Fahey hired Magee to become DTSI’s first Human Resources Director, but her at-will employment lasted less ⁵³⁵ than nine months. Fahey claims that he fired Magee because her excessive absenteeism made her work performance unsatisfactory. Magee claims that she was the victim of sexual harassment and retaliation.

The parties presented conflicting stories about what happened in the DTSI workplace, and why Magee was fired. They litigated two separate motions for summary judgment, which were heard by two different judges, with opposite outcomes. In granting the second motion for summary judgment, the court considered deposition testimony by Magee and Fahey, affidavits from Magee and Fahey, and Magee’s answers to interrogatories. We must review the same evidence, and the inferences from that evidence, in the light most favorable to Magee, as the party opposing summary judgment.

See Heat & Power Corp. v. Air Prods. & Chemicals, Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990). Magee’s Story Magee retired from a position in human resources with Montgomery County on December 31, 1996. Her family had a long relationship with Fahey’s family. Magee claims that in early January 1997, Fahey contacted Magee regarding the possibility of Magee coming to work for DTSI.

DTSI specializes in recruiting and placing contract workers in the high-tech industry. Many of these workers are foreign nationals. Magee agreed to meet with Fahey. At that meeting, Fahey advised Magee that he wished to create a new human resources position, and discussed hiring her in either a consulting capacity or as a permanent member of his staff.

Fahey did not mention any recruitment or placement responsibilities. Fahey hired Magee. Magee recalls that she began working in late January or early February 1997, reporting directly to Fahey. She alleges that she had advised Fahey that she needed to complete physical therapy for a back injury, and therefore would work part-time before becoming full-time.

Her responsibilities included managing personnel issues relating to employee benefits, updating files for compliance with ⁵³⁶ federal and state laws, and initiating and monitoring appropriate sponsorship for foreign national employees. Magee became the only full-time female on site at DTSI. In addition to Fahey, DTSI had several male employees who recruited and placed workers for DTSI’s clients. Recruiters earned commissions for each successful placement.

Magee soon encountered a number of problems at DTSI. She alleges that in her capacity as human resources director, she brought to Fahey’s attention a number of irregularities. She contends that Fahey either created, ignored, or dismissed these matters, and that he responded negatively to her refusal to “go along” with what she believed were inappropriate or illegal activities. Magee specifically complained about the following work-related disputes with Fahey. • Immigration Documentation.

Magee was responsible for maintaining right-to-work documentation for immigrant workers placed by DTSI. Shortly after she began work, she discovered that DTSI had a practice of not properly verifying and maintaining such records. After reviewing all of DTSI’s files, Magee advised Fahey that DTSI must bring itself into compliance with federal immigration and employment laws. Fahey responded that Magee was “going overboard” and became openly resentful of her efforts to “keep the company honest.” He pressured Magee to place foreign nationals who were not authorized to work.

When Magee told Fahey she would not participate in any illegal activity, he put those workers without proper documentation to work, over Magee’s objection. • Overtime Payroll. Magee believed that some DTSI employees who were working for a particular client qualified for overtime. She advised Fahey about her concern that the failure to pay them overtime violated federal and state laws. She did not file a complaint under the Fair Labor Standards Act (“FLSA”).

Fahey disagreed with Magee, and became openly upset about Magee’s insistence that ⁵³⁷ the company pay overtime. But eventually DTSI did make retroactive payments to these employees. • Health Insurance. Magee was responsible for managing health benefit packages for DTSI employees. She completed routine claim forms for submission to DTSI’s health insurance carrier.

Fahey instructed Magee to submit a form stating that Nathaniel Brous, a DTSI employee’s son with a known heart condition, was an employee entitled to coverage under DTSI’s health insurance. Magee objected because the son was not an employee. She refused to submit a claim on his behalf, and told Fahey that doing so would violate federal health fraud laws. Fahey demanded that she give him the paperwork.

Magee also considered the workplace at DTSI discriminatory, and repeatedly complained to Fahey that he was promoting and tolerating a hostile environment. She claims that “[fjrom almost the first time I began to work there, I complained about the discriminatory activity,” and that she continued to complain about it “all the time.” In support of her hostile environment charges, Magee offered a long list describing specific incidents of sexual harassment. Among the more egregious instances that Magee reported are the following: • “Dan [Fahey] would repeatedly pin me against my chair while he would show me things on the computer, and then he would run his knee up and down my leg.” • Fahey took a photograph of a painting of a nude woman by a famous painter. “It had been on the wall across from where my desk was. He moved it over to just above my desk, so that when I looked up, I was staring at her buttocks.

I told him not to put it there because I did not want to look at it. He refused to move it. Additionally, he would pat the ... buttocks in front of me and look at me while he did it. Finally, I moved my desk so I did not have to be right under the painting.” • “On one occasion, [Fahey] moved to adjust artwork over my desk, which did not need any adjusting.

He reached ⁵³⁸ across me, and bumped my breast. He then said in a disingenuous overreaction, ‘Oh, I’m sorry, sorry sorry sorry sorry sorry sorry sorry sorry sorry. Don’t take that wrong.’ Then he stopped at the door on the way out, and said to me, referring to my breasts, ‘But they’re real solid.’ ” • Fahey permitted one of the male recruiters to display a calendar featuring graphic photographs of nude women. Magee advised Fahey that the calendar was inappropriate and that it should be removed.

Fahey “made it seem as if I was being unreasonable in requesting that it be removed.” He allowed the calendar to remain on display until he moved the male recruiter into his own separate office. • During a staff meeting, one of the male recruiters, under the guise of asking Magee for advice as the human resources director, asked her what he should do “when he turned on the computer and found a picture of two nude women defecating on a nude man.” Another male recruiter asked what the site address was. Fahey then said that he had several he could give the recruiter. Magee “was pressed for an answer until [she] told them not to turn on the computer if they had a problem.” • Fahey commonly used gender-based comments regarding workplace matters. He repeatedly referred to women as “bitches.” When Fahey terminated a female worker placed with a client, Magee commented that the woman did not have “the balls” to do the job.

Fahey corrected her by noting that, actually, “she did not have the ‘ovaries’ to do the job.” In addition, Fahey would say Magee was “ovulating” when she was not in a good mood. When Magee made her first hire, Fahey announced to a client and then to the entire staff that she had “lost [her] virginity.” • Fahey and the other men in the office directed dirty jokes to Magee. “Every day one of the men would confront me with a poorly constructed blatant sexual joke and then I ⁵³⁹ was asked if I was offended because I was blushing. Weekly staff meetings [included] at least one off color joke or remark.” • Magee was eventually required to recruit. But the male recruiters had first access to the latest resumes coming in from the fax machine located near them. • “I explained it was not my mission to shake up the status quo but I was obligated to point out to my employer where there were problems.” One of the male recruiters responded, “my dear I’m telling you if you don’t go along with the majority you aren’t going to enjoy working here.” Another recruiter then said he was going to tell a joke and Magee left.

She reported the incident to Fahey “and was told that sounded like good advice.... Fahey said what some people believe is sexual is art to other[s].” • In August 1997, Magee asked counsel for DTSI to speak to Fahey about the hostile work environment. During a meeting on a particular account, Fahey concluded a telephone call, and then “said to me and [counsel] that he loved to give that ‘broad’ ‘lots of angst.’ [She] said he should not talk that way in the office. He ... laughed saying she sounded like me.

I then requested that she ... instruct Mr. Fahey on what constitutes sexual harassment and a hostile work environment. I gave instances of sexual jokes, the girlie calendar, nude art, women not having ovaries to do the job. She told him none of that was appropriate and remember it was the employer’s responsibility to maintain a non-hostile environment regardless if the employees were causing the problem. When [s]he left he screamed at me for embarrassing him in front of [his attorney] and that I would not attend any more meetings with [her] or [that client’s] account.

I told him I was submitting my resignation and he said I was too uptight and he would decide when I would leave because he would give me a bad reference and destroy my work history and at my age who would hire an old governmental employee who couldn’t cut it in the corporate world.” ⁵⁴⁰ • The next day Fahey “called me into the office and grab[bed] me around my windpipe and said he thought that was the choke hold my brother had used on me [in a December 1996 altercation] because it could crush the pipe very easily. I grabbed his hand because he was exerting pressure and tried to pull back. I slapped his hand and told him never to touch me again. I was terrified.... ” Magee asserts that Fahey and DTSI retaliated against her because she objected to “the illegal and discriminatory conduct in the office.” She alleges that her “responsibilities were reduced, altered and/or were significantly changed following [her] complaints of sexual harassment.” She was given undesirable work assignments, and excluded from company meetings that she would have attended before she complained about sexual harassment.

Fahey required her to engage in recruiting and placing consultants, which was not within her original job responsibilities, and she considered this a demotion. He informed male employees about her complaints of sexual harassment, and they responded by harassing Magee, and by increasingly using derogatory terms about women and sexually explicit language in front of her. After she complained to DTSI’s attorney, she was “yelled at, demeaned, ostracized, and had things knocked off’ her desk. Magee alleges that “[t]he harassment became so bad that [she] had trouble performing [her] job.” Magee also charged that in addition to the hostile environment and instances of inappropriate touching, Fahey eventually made an overt advance, which she rebuffed.

A week [after the choking incident, in August 1997], he became very sweet and confided in me that Maria, the mother of his child, was pushing him with an ultimatum to marry her or to get out. He liked the arrangement and he wasn’t ready to marry again. I told him to tell her not me. He wanted to see what else was out there and then asked if I would like to go out.

I told him I did not have any romantic feelings toward him and wasn’t interested. Then he changed from sweetness to ugly mood and threatened me ⁵⁴¹ with future problems of damage to myself, car, house, or family with the aid of his brothers. “Things just happen,” he said. He reiterated that he and his brothers had a way of making sure that if someone “fucked” with him that they would be harmed or they will find their property damaged. I was told that I would start having problems with my leave and employment.

Magee alleges that from the moment she told Fahey that she was not interested in going out with him, he retaliated by escalating his harassment, and looking for a way to fire her. From that day on I could do nothing right. I was screamed at in the office. I was belittled that I wasn’t good as a recruiter either and that I wasn’t a team player____ He pretended to be looking for something on my desk and deliberately knocked over a figurine, broke it, smiled and said sorry.

Magee claims that every day after she rebuffed him, Fahey said “I’m watching you.” He also told two male recruiters in her presence that he was watching her. Magee learned from another male recruiter that Fahey had instructed him to “watch” her too. Eventually, Fahey fired Magee, citing problems with her leave. Magee alleges that Fahey seized the opportunity presented by her father’s death to “set her up” to take bereavement leave that he explicitly approved, and then fired her for doing so.

On 9/24/97, I contacted Mr. Fahey by phone, and told him my father was in the hospital with a heart attack.... Mr. Fahey told me that I should come to work, and that I could not do anything to help my father, since he was in the hospital. I told Mr. Fahey that my father was expected to die, and that I needed to be out, and then he said OK. On 9/25/97, I told Mr. Fahey that my father was in a coma, and that the family was getting together at the request of the doctor to make a decision regarding maintenance or removal of life support. ⁵⁴² On 9/26/97, I told Mr. Fahey that my father had died, and was going to be making funeral arrangements.

On 9/29/97, my father was buried. I saw Mr. Fahey at the funeral. At the church, he spoke to me, and told me not to worry, that everything would be OK---- Later, at the cemetery, he expressed his condolences to me, and told me that I should take off as much time as I needed to get over my father’s death, and my job would always be there. I told him that I would be taking off until at least the end of the week.

He said OK. 3 On 10/6/97 [the following Monday], I called the office and left a message for Mr. Fahey to phone me because I was having chest pains following my father’s death, and my doctor was advising me to stay out of work. Mr. Fahey did not respond. On 10/7/97, I called and left a message for Mr. Fahey. He did not respond.

On 10/8/97 [and 10/9/97], I called and left a message for Mr. Fahey. He would not take the phone call and would not respond to me____ On 10/10/97,1 received a letter from Mr. Fahey stating that I was terminated. Magee disputes DTSI’s allegation that she took excessive leave. DTSI gave each of its employees thirty days of personal leave in addition to vacation time.

She contends that “throughout my employment, when I needed to use leave, I would talk with Mr. Fahey who would approve the leave.” She emphasizes that at her father’s funeral, Fahey, in the presence of three witnesses, told her that she could take as much bereavement leave as she needed, and that her job would be there when she came back. Magee claims that she kept regular time sheets reflecting her attendance, but notes that by the time she was permitted to return to DTSI, she no longer had access to them. Without ⁵⁴³ those time sheets, 4 Magee could not state with certainty all of the occasions on which she used portions of the thirty days of leave. She admitted being absent on five separate days in order to comply with subpoenas in three different lawsuits involving other members of her family, and being absent one other day to comply with a subpoena to testify in a case brought against Montgomery County by a former employee.

In addition, she acknowledges that she took two days of leave to attend an out-of-state wedding, as well as the illness and bereavement leave related to her father’s death. She claims, however, that her final pay stub shows that at the time she was fired, she had “a positive leave bank” and had not used all of her vacation time. Finally, Magee asserts that she has not been paid all of the salary, commissions, and unused vacation that are due to her. In addition to showing 22.20 hours of “remaining” vacation pay, her final pay stub (dated October 3) reflects that she was paid salary and commissions through September 27, 1997.

She claims that she was terminated by Fahey’s letter dated October 9th, and therefore should have received salary through that date. In addition, she contends that at the time she was terminated, she “was receiving commissions on” four workers whom she had placed successfully, but that she was not paid the remainder of those commissions after she left. The Story According To DTSI and Fahey DTSI and Fahey, of course, tell a different story, but they also assert that those differences do not preclude summary judgment. Fahey was the only DTSI representative who ⁵⁴⁴ presented evidence in support of the motion for summary judgment.

In both his affidavit and his deposition testimony, he emphatically insisted that Magee had been chronically absent from the time she started at DTSI, and that her failure to return to work the week after her father’s funeral was the “last straw.” Fahey asserted that Magee never put in a full week of work. In an undated affidavit in support of the first motion for summary judgment, he claimed that he made the offer in “late 1996, ” and that Magee “was supposed to start work [full time] in the first week of January 1997,” as a full-time employee. He complained that Magee did not begin until February 3, 1997, and worked only 18 hours in her first two weeks. He also alleged that [throughout her employment by DanSources, she was chronically late for work, took long lunches, and left work early in the day____ [She] was frequently absent from work.... for one or more days week after week....

Ms. Magee’s frequent absenteeism, and her frequent stopping and starting on tasks and projects, deprived Dan-Sources of consistency and continuity, and adversely affected her job performance. I spoke to her about her lateness and truancy, and urged her to improve her performance, which was unproductive and unsatisfactory. Ms. Magee failed to improve her performance, and continued with her lateness and absenteeism. Fahey also stated that Magee used all of the thirty days of her annual allotment of leave “in less than six months.” In addition, Fahey disputed Magee’s allegations regarding the immigration, overtime, and health insurance incidents.

He asserted that Fahey could not point to one improperly documented worker, that the employees Magee insisted were entitled to overtime were exempt from federal and state overtime laws, and that Nathaniel Brous was legitimately on DTSI’s payroll. Fahey disputed Magee’s hostile environment claim, too. In his affidavit, he described the work environment as including ⁵⁴⁵ “occasional office banter, chatter and jokes, none of which was directed at any particular person because of his or her sex.” He alleged that Magee participated in the conversations, citing the incident when Magee commented that a particular female had “balls,” and he “corrected her, pointing out that this person had ovaries.” He denied, however, that he or other persons in the office used the terms “ ‘bitch, ‘ovaries’ or ‘ovulating’ with any frequency.” Otherwise, he did not admit or deny many of Magee’s specific allegations of inappropriate conduct. He did admit that one employee “discreetly kept a small nude picture in a hard to view corner of the office” and that “[i]n February 1997 Ms. Magee suggested that it be removed.” In “one week or two,” Fahey moved the employee to an office down the hall.

He removed the picture and did not put it up again. Fahey denied making any overtures to Magee. Noting that he is married with three children, he denied having any romantic feelings for Magee, denied asking her to date him, and denied making a date a condition or term of employment. At his January 28, 1999 deposition, Fahey corrected a number of statements that he made in his affidavit.

His testimony raised some uncertainty about Magee’s leave. First, he revised his complaint that Magee had worked only 18 hours during her first two weeks on the job, estimating that she worked approximately 26 hours in those weeks. Then he revised his statement that Magee had used all of her 30 days of leave “in less than six months.” Instead, Fahey testified, the correct time period was probably 8 months. He explained that he required Magee, and only Magee, to keep timesheets, because of his concerns about her absenteeism and lack of productivity.

But he admitted that he never consulted the timesheets or other documentation to calculate the amount of leave Magee had taken. Instead, he relied solely on his memory, performing mental calculations to determine that she had used up all of her leave. In addition, he claimed that the amount of leave and vacation reflected on Magee’s final pay stub was not accurate. ⁵⁴⁶ Fahey’s deposition testimony also raised questions about the timing of his decision to terminate Magee. In his affidavit, Fahey stated that in September 1997, I determined to discharge her for her frequent lateness, absenteeism, and unsatisfactory job performance, and for no other reason.

That week, Ms. Magee’s father passed away, so I delayed her discharge. She asked for the rest of the week off and promised to return the next Monday. She said to dock her pay because she knew she had no leave time left. She did not return to work the next Monday, Tuesday, or Wednesday.

I then discharged her on or about October 9, 1997.... At his deposition, Fahey did not deny that he had given Magee permission to take bereavement leave for the remainder of the week after her father was buried. He testified that when Magee extended her leave past Monday, October 6th, the week after her father’s funeral, he decided to fire her. When she called in on Monday [October 6th], I didn’t mind it.

She called in on Tuesday, it bugged me. This is the message I received. Called in Wednesday, she wasn’t coming in. That was it.

I had to write [that] letter. Finally, Fahey’s deposition testimony undermined his claims, stated in his affidavit, that DTSI “paid [Magee] all salary and commissions she earned at the time of her discharge,” and that, “[a]s a matter of policy, Dansources does not compensate employees who are terminated for unused vacation time.” Fahey testified that he did not know whether Magee had been paid for October 6, 7, or 8, but asserted that he considered her last day to be October 4th rather than October 9th, the date of his termination letter. He did not offer any explanation for why Magee’s last pay stub states that she was paid only through September 27th. Contrary to his affidavit statement that DTSI did not pay unused vacation hours upon termination, Fahey also testified that he paid unused vacation time to one of the male recruiters when he laid him off.

He explained that DTSI’s policy of not paying ⁵⁴⁷ unused vacation exists “[o]nly when I decide to do so,” and depended completely on whether he wished to pay it. The Motions Shortly after the complaint was filed, DTSI and Fahey moved to dismiss the complaint, or in the alternative, for summary judgment. They submitted Fahey’s affidavit in support of the motion. Magee opposed the motion with her own affidavit, her last pay stub, as well as excerpts from Fahey’s deposition and affidavit.

The trial court denied the motion, finding that the central issue in the case was disputed. The defendant says that he fired her because ... of an absentee problem.... The plaintiff says, “You fired me for impermissible reasons.” ... Well, that is a dispute, that is what the case is all about.... [S]he alleges the impermissible reasons ... in her affidavit---- [I]f those facts and if the rational reasonable inferences that can be drawn from those facts are believed, then she had made out a claim---I think that analysis ... applies to all of the counts equally.

Seven months later, DTSI filed a second motion for summary judgment. It renewed the same arguments from the first motion, but filed new evidence in support. To Fahey’s original affidavit, DTSI added Magee’s answers to interrogatories, excerpts from Fahey’s deposition (taken shortly after the first motion was filed), and Fahey’s answers to interrogatories. Magee opposed the motion, asserting the same arguments she made successfully on the first motion.

She added to the record a transcript of the hearing on that motion and three affidavits from witnesses to Fahey’s statements to Magee on the day her father was buried. In reply, DTSI filed excerpts from Magee’s deposition, taken after the second motion was filed. At the hearing on the second motion, the court granted judgment on all counts, stating only generally that it was satisfied by the pleadings and argument. The court held that “there is no material dispute of fact that would permit the continuation of this claim.” This appeal followed. ⁵⁴⁸ DISCUSSION I. Appellate Review Of Summary Judgment We review the trial court’s rulings on each count of the complaint separately, deciding the same questions, based on the same evidence.

See Heat & Power Corp., 320 Md. at 591-92 , 578 A.2d 1202 . In doing so, however, we are presented with a record that is not clear regarding why the trial court granted summary judgment on any of these five counts. This silence complicates our review. Generally, we limit our review to the facts and law that the trial court cites as grounds for the judgment, and we may not rely on other legal theories to affirm or reverse the judgment.

See Baltimore Gas & Elec. Co. v. Commercial Union Ins. Co., 113 Md.App. 540, 553 , 688 A.2d 496 (1997). Here we do not know which, if any, of the employer’s many arguments and facts actually served as the basis for the court’s decision.

Accordingly, we must examine, on a count by count basis, each of the theories and related evidence advanced in support of the motion, and determine whether any one of them was a legally correct and factually sufficient basis for the judgment.

II

Sexual Harassment Claims Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, forbids an employer from “discriminat[ing] against any individual with respect to [her] ... terms, conditions, or privileges of employment, because of such individual’s ... sex----” Id. at § 2000e-2(a)(l). Section 16 of Md.Code (1957, 1998 RepLVol., 2000 Cum.Supp.), Art. 49B (“Article 49B”) also prohibits employment discrimination because of an individual’s gender. Although neither of these statutes is directly applicable because DTSI has fewer than 15 employees, the substantively similar anti-discrimination provisions of the Montgomery County Code, Art. I, Chapter 27 (“Mont. Code”) are applicable.

This law prohibits sexual or gender ⁵⁴⁹ discrimination in employment by Montgomery County employers with “more than six (6) employees within the county....” 5 Mont.Code § 27-18(b); see Montgomery County v. Broadcast Equities, Inc., 360 Md. 438, 442 , 758 A.2d 995 (2000). Under Article 49B, section 42, “[i]n Montgomery County, ... a person who is subjected to an act of discrimination prohibited by the County Code may bring and maintain a civil action” in circuit court within two years after the occurrence of the alleged discriminatory act. See Art. 49B, § 42. Thus, the anti-discrimination provisions of the Montgomery County Code, which are substantively similar to Maryland law under Article 49B and federal law under Title VII, are applicable to DTSI.

Cf. Chappell v. Southern Maryland Hosp., Inc., 320 Md. 483, 494 , 578 A.2d 766 (1990) (comparing federal and state discrimination laws). In the first three counts of her complaint, Magee charged that DTSI and Fahey created a hostile work environment, engaged in and tolerated quid pro quo sexual harassment, and retaliated against her after she complained about the harassment and rebuffed Fahey’s advance. We must address several different arguments regarding each of these distinct “varieties” of sexual harassment.

A. Count One: Hostile Environment The Court of Appeals’ recent decision in Manikhi v. Mass Transit Admin., 360 Md. 333 , 758 A.2d 95 (2000), sets ⁵⁵⁰ forth the elements and proof requirements for a hostile environment sexual discrimination claim. The Court emphasizes that the allegedly discriminatory conduct must be so “objectively” severe or pervasive that it has a substantial effect on the terms or conditions of the employment. To establish a claim for sexual harassment under [the hostile environment] provision the plaintiff must prove the following four elements: ‘(1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiffs conditions of employment and to create an abusive work environment; and (4) it was imputable on some factual basis to the employer.’ “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview.” Id. at 348-49 , 758 A.2d 95 (quoting Spicer v. Virginia Dep’t of Corrections, 66 F.3d 705, 710 (4th Cir.1995), and Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 , 114 S.Ct. 367, 370 , 126 L.Ed.2d 295 (1993)). In this case, we are asked to consider “how much” sexual harassment it takes to raise an “objective” inference that “it was sufficiently severe or pervasive to alter the plaintiffs conditions of employment and to create an abusive work environment.” See id.

Magee argues that the trial court erred by making a factual determination regarding the evidence she proffered in opposition to summary judgment. In response, DTSI offers two arguments to explain why it was entitled to judgment on this claim. Because we do not know the trial court’s reasons for granting this judgment, we shall consider both of DTSI’s arguments. 1. Same Actor Inference Against Discrimination DTSI argues that summary judgment on Magee’s hostile environment claim was appropriate because of the “same actor ⁵⁵¹ inference.” In cases where there is no direct evidence of discrimination, DTSI contends, the employer may rely on an inference that arises when the complaining employee has been hired and fired by the same individual within a relatively short time period.

DTSI asserts that in Molesworth v. Brandon, 341 Md. 621 , 672 A.2d 608 (1996), the Court of Appeals approved the Fourth Circuit’s holding that in such circumstances there is “a strong inference that the employer’s stated reason for acting against the employee is not pretextual,” and therefore, that the adverse employment decision was not motivated by discriminatory intent. In its seminal opinion adopting a same actor inference, the Fourth Circuit explained the factual premise underlying the same actor concept. ‘[Cjlaims that employer animus exists in termination but not in hiring seem irrational.’ From the standpoint of the putative discriminator, ‘it hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them) only to fire them once they are on the job.’ Proud v. Stone, 945 F.2d 796, 797 (4th Cir.1991) (quoting Donohue & Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 Stan. L.Rev. 983, 1017 (1991)). Here, DTSI asserts that the same actor inference approved by Molesworth “works to defeat Magee’s attempt to avoid summary judgment,” by “substantially” increasing “the proof required of Magee in order to avoid summary judgment____” DTSI misunderstands Molesworth , which is the only reported Maryland decision addressing the same actor concept.

We disagree that the Molesworth Court approved or adopted the same actor concept in all cases where there is no direct evidence of discrimination. We also reject DTSI’s contention that the same actor concept should be treated as a presumption or inference that increased Magee’s burden in opposing the motion for summary judgment on her hostile environment claim. We explain. First, we do not read the Molesworth Court’s discussion of the same actor concept as an approval of the same actor ⁵⁵² inference in cases involving circumstantial evidence of a hostile environment.

The case involved Molesworth’s claim that Brandon hired her into his veterinary practice, but then discharged her because clients did not want a female veterinarian. When Molesworth asked whether she was being fired because she was female, she was told that her gender “[was] part of it.” Id. at 626 , 672 A.2d 608 . The Court of Appeals rejected Brandon’s arguments that the same actor concept created a presumption that the firing was not motivated by a discriminatory animus, and that he was entitled to a jury instruction to that effect. Because a presumption is merely a substitute for direct evidence of discrimination, the Court held that “[t]he presence of direct evidence in this case ... makes a presumption regarding discriminatory intent inapplicable.” Id. at 643 , 672 A.2d 608 .

The Molesworth Court, however, did not rest its decision solely on the presence of “direct evidence” in the case, as DTSI suggests. It also held that “the facts of this case do not warrant the creation of a presumption.” Id. at 643 , 672 A.2d 608 . The Court recognized that the most important reason for creating a presumption is “probability,” because “ ‘[m]ost presumptions come into existence primarily because the judges have believed that proof of fact B renders the inference of the existence of fact A so probable that it is sensible and timesaving to assume the truth of fact A until the adversary disproves it.’ ” Id. at 643-44 , 672 A.2d 608 (quoting McCormick on Evidence, § 343 (4th ed.1992)). It concluded that the same actor concept is based on a questionable assumption about the probability of discrimination, explaining that the universe of discriminatory possibilities is far broader than the same actor concept can explain. [WJhere the same person hires and fires an employee it is not “so probable” that the discharge was not motivated by discrimination that we ought to assume it is so in every case....

Here, it is possible that Brandon fired Molesworth because his clients did not want a female veterinarian. The fact that the discriminatory animus may have originated in the clients makes Brandon no less culpable for ⁵⁵³ discharging Molesworth because of her sex. It does, however, provide an explanation for his actions that is contrary to the [requested] presumption. Thus, the probability that the discharge was not due to discrimination is not so great as to warrant the creation of a presumption based on the facts before us.

Id. at 644, 672 A.2d 608 (emphasis added) (citations omitted). The Molesworth Court held that the value of the same actor inference is a matter for the fact finder to decide. In doing so, it adopted the rationale of the Third Circuit, which has rejected the notion that the same actor inference is entitled, as a matter of law, to some special evidentiary weight. Our refusal to adopt the ‘same actor inference’ as a presumption in this case does not preclude Brandon from making this argument to the jury.... ‘But this is simply evidence like any other and should not be accorded any presumptive value.’ Id. at 645 , 672 A.2d 608 (emphasis added)(quoting Waldron v. SL Industries, Inc., 56 F.3d 491 , 496 n. 6 (3d Cir.1995))(adopting EEOC position that value of same actor evidence is limited to what the jury decides it should be).

We recognize that Molesworth does not decide the specific questions now raised by DTSI—whether a same actor inference 6 is appropriate in a hostile environment case based on circumstantial rather than direct evidence, and whether the same actor concept justifies raising the employee’s burden of proof on summary judgment. Nevertheless, we share the ⁵⁵⁴ doubts expressed by the Molesworth Court about the need for such an inference and, more importantly, about the “probabilities” underlying the same actor concept. Magee and DTSI disagreed about what happened at DTSI and why Magee was fired. We agree with the Moles-worth Court that in considering conflicting information regarding an allegedly discriminatory discharge, a jury is fully capable of evaluating the significance of evidence that the same person hired and fired the plaintiff.

See Molesworth, 341 Md. at 644-45 , 672 A.2d 608 . Just as the Molesworth Court concluded there is no reason to bypass the fact finder by way of a jury instruction adopting a same actor presumption, we see no reason for bypassing the fact finder by requiring the trial court to give special weight to same actor evidence at summary judgment. “The summary judgment process is not properly an opportunity for the trial court to give credence to certain facts and refuse to credit others.” Okwa v. Harper, 360 Md. 161, 182 , 757 A.2d 118 (2000). Thus, resolving disputes regarding facts and inferences central to a plaintiffs claim is not the trial judge’s role at the summary judgment stage of litigation. To the contrary, “[i]n resolving whether a material fact remains in dispute, the court must accord great deference to the party opposing summary judgment,” by making all inferences in favor of the party opposing judgment.

Laws v. Thompson, 78 Md.App. 665, 674, 554 A.2d 1264 , cert. denied, 316 Md. 428 , 559 A.2d 791 (1989). In hostile environment cases, it seems rather obvious that those facts and inferences must be resolved in favor of the employee. We do not agree with DTSI that the same actor evidence offers a good reason to change this rule. Like the Molesworth Court, we doubt the value of the same actor concept in the circumstances now before us.

As this case illustrates, a female employee who alleges a hostile environment is not necessarily alleging that the employer does not want any women in the workplace, but rather, that the employer does not want women who are unwilling to “go along” with the climate of sexual harassment and discrimina ⁵⁵⁵ tion that prevails in that workplace. Instead of excluding women, the person who hires and fires may condition the continued employment on the employee’s tolerance of “on-the-job” harassment and discrimination. Using a same actor inference to obtain summary judgment in a hostile environment claim ignores this very real possibility, and invites its misuse as an undeserved “refuge for scoundrels.” Cf. Vaughan v. Must, Inc., 542 N.W.2d 533, 539 (Iowa 1996) (“To apply such a wooden rule in an area where each case is factually distinct would effectively grant every employer a grace period at the beginning of each employee’s tenure during which the employer could freely discriminate with no fear of sanctions”).

Accordingly, a manager’s decision to hire a woman in the mistaken belief that she will either cooperate in the sexual harassment, or that she will not “rock the boat” by objecting to it, should not be rewarded with an inference that there was no discrimination in the workplace, or with an “automatic” advantage for the employer on summary judgment. Instead, we agree with the well-reasoned view expressed by the Seventh Circuit, that the same actor concept generally does not provide sufficient grounds for summary judgment. The psychological assumption underlying the same-actor inference may not hold true on the facts of the particular case. For example, ... an employer might hire an employee of a certain gender expecting that person to act, or dress, or talk in a way the employer deems acceptable for that gender and then fire that employee if she fails to comply with the employer’s gender stereotypes.... [F]or [this] reason[ ], the same-actor inference is unlikely to be dispositive in very many cases.

In fact, we have found no case in this or any other Circuit in which a plaintiff relying on circumstantial evidence to prove an improper motive was able to produce sufficient evidence to otherwise sustain his burden on summary judgment and yet was foreclosed from the possibility of relief by the same-actor inference. This is unsurprising given that the same-actor ⁵⁵⁶ inference is not itself evidence of nondiscrimination. It simply provides a convenient shorthand for cases in which a plaintiff is unable to present sufficient evidence of discrimination .... Whether a plaintiff can survive summary judgment on a discrimination claim depends on the evidence a plaintiff is able to present.

We therefore doubt the utility of broad generalizations about who is and is not likely to discriminate in deciding whether a plaintiff has produced sufficient evidence of discrimination to sustain his burden on summary judgment. Johnson v. Zema Systems Corp., 170 F.3d 734, 745 (7th Cir.1999) (emphasis added). 7 We find this position