Maryland Shipbuilding & Drydock Co. v. Maryland Commission On Human Relations

BLOOM, Judge. Maryland Shipbuilding & Drydock Company appeals from a judgment of the Circuit Court for Baltimore City which affirmed an order of the Maryland Commission on Human Relations finding that appellant had denied its employee, Thomas Jackson, a promotion because of his race. Maryland Shipbuilding asserts that the Commission erred by failing to apply to the evidence the correct legal standard, viz, that the qualifications of the one who was denied a promotion are equal to or exceed those of the person who was promoted. Appellant also contends that Jackson was not as well qualified for promotion as those individuals who were promoted and that the record fails to support the Commission’s finding that the reasons for denying Jackson a promotion proffered by appellant were pretextual.

We disagree with all of those contentions and will affirm the judgment. ⁵⁴² Facts Thomas Jackson had been employed by Maryland Shipbuilding & Drydoek Company, Inc. for several years. From 1943 to 1972, Jackson worked in the Rigging Department, first as a rigger’s helper and later as a third class specialist. In November 1972, Jackson voluntarily accepted a transfer from the Rigging Department to the Guard Department, even though that reclassification resulted in a pay reduction. Jackson found the transfer attractive because of the potential for overtime as a guard and the greater opportunity for promotion within the Guard Department.

Jackson was the first and only black individual ever hired as a guard by Maryland Shipbuilding. After serving as a guard for several years, Jackson applied for a promotion to lieutenant guard. In December 1979 Jackson contacted Maryland Shipbuilding’s Vice President, Gerald P. Walls, concerning such a promotion. Mr. Walls explained to Jackson that it was the function of the Chief Lieutenant to make promotional recommendations; Jackson was instructed, therefore, to direct his inquiries to Chief Lieutenant Emory A. Koch.

Jackson contacted Koch and was informed that he would not be recommended for promotion. There is a dispute in the testimony as to whether Koch offered a detailed explanation for his decision not to recommend Jackson, but both of them agree that Koch did state Jackson was not forceful enough to be a lieutenant. Believing that racial prejudice was the true motivation for denying him a promotion, Jackson filed a complaint of discrimination with the Maryland Commission on Human Relations. The Commission’s initial investigation was conducted by Carol Maulsby, an Intergroup Relations Representative.

Counsel for Maryland Shipbuilding informed Ms. Maulsby, by letter dated 2 February 1980, that Jackson was denied a promotion because he lacked the qualifications for the position of lieutenant guard. Those qualifications were identified as forcefulness, ability to supervise, good judgment, ⁵⁴³ ability to deal with the public and shipowners, and sufficient education to write reports. Shortly thereafter, Ms. Mauls-by conducted a fact-finding conference. She was provided with an affidavit by Mr. Koch, in which he stated that at the time Jackson approached him concerning a promotion he identified four reasons why he would not recommend Jackson for a promotion: 1.

Jackson was not forceful enough; 2. He had exhibited problems in accepting responsibility; 3. He was unable to make sound and timely decisions; and 4. He had difficulty writing accurate reports.

Prior to his inquiry about promotion, Jackson had never been informed that he lacked forcefulness or had difficulty in accepting responsibility and making decisions. Moreover, the hearing examiner reviewed reports prepared by Jackson and concluded that they were “understandable and intelligible.” In May 1980, Ruth Marcus assumed responsibility for the Commission’s investigation as it entered the “extended phase.” Maryland Shipbuilding informed the Commission in September 1980 that Jackson was unqualified to be a lieutenant guard because the effects of a knee injury he suffered in 1976 1 impaired his ability to complete a guard’s patrol round in a timely manner and a lieutenant guard’s patrol round would be even more difficult for him. Ms. ⁵⁴⁴ Marcus requested that she and Jackson be permitted to walk through the typical patrol round of a lieutenant guard. Jackson was permitted to do so in November 1980 and performed the required walking and climbing without observable difficulty.

A hearing on Jackson’s complaint was conducted in January 1983. The hearing examiner found that Jackson had produced a prima fade case of discrimination under the doctrine of McDonnell Douglas v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973); Maryland Shipbuilding, therefore, was deemed to have the burden to articulate some nondiscriminatory reasons for denying Jackson a promotion. The reasons proffered by Maryland Shipbuilding— inferior qualifications and a disqualifying knee injury— were found by the hearing examiner to be mere pretexts for denying Jackson a promotion. It was the examiner’s corn elusion that had Jackson been white he would have been promoted; consequently, Maryland Shipbuilding had engaged in unlawful employment discrimination.

Md.Ann. Code art. 49B (1983). That conclusion was upheld on appeal first by the Commission’s Appeal Board and then by the Circuit Court for Baltimore City. Issues Maryland Shipbuilding frames the questions on appeal as follows: I. Whether the Commission erred as a matter of law by failing to compare Jackson’s qualifications with those of employees promoted to the position of lieutenant guard.

II

Whether the evidence, in light of the entire record, establishes that Jackson was neither as qualified nor more qualified than employees promoted to the position of lieutenant guard.

III

Whether the Commission erred by rejecting the company’s reasons for not promoting Jackson as pretexts. ⁵⁴⁵ We will affirm the judgment of the circuit court, since our answers to the first and third questions are in the negative and we find the second question irrelevant in the context of this appeal. I When an individual, such as Jackson, alleges that he was the victim of disparate treatment in the workplace, he carries with him the burden of proving that the employer intentionally discriminated against him. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 , 101 S.Ct. 1089, 1093 , 67 L.Ed.2d 207 (1981). That burden can be met in either of two ways.

If the claimant possesses direct or indirect evidence of discrimination he may produce that evidence. Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 242 (4th Cir.1982). Alternatively, if he has no such evidence, the claimant must resort to the prima facie case method of McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973), and its ensuing complexities. In McDonnell Douglas , the Supreme Court created a three-step process for the order and allocation of proof through which claims of employment discrimination could be resolved.

In step one, the claimant has the burden of constructing a prima facie case of discrimination by the preponderance of the evidence. McDonnell Douglas, 411 U.S. at 803 , 93 S.Ct. at 1824 . That burden can be met by showing: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. Id. at 802 .

Upon presentment of a prima facie case, a rebuttable presumption of illegal discrimination arises, and the parties move on to the next step, where the onus is upon ⁵⁴⁶ the employer to articulate one or more legitimate nondiscriminatory reasons for rejecting the claimant. That burden is not one of persuasion, but one of production. If the employer’s explanation creates a genuine issue of fact, the presumption of discrimination “drops from the case.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254 -55 & n. 10, 101 S.Ct. at 1094 -95 n. 10 (1980). Then, as the final step, the burden shifts back to the claimant to prove that the reason given for his rejection was pretextual.

McDonnell Douglas, 411 U.S. at 803 , 93 S.Ct. at 1824 . That burden thus merges with the claimant’s ultimate burden of showing that the employer intentionally discriminated against him. Burdine, 450 U.S. at 256 , 101 S.Ct. at 1095 . The claimant may “succeed in this directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Id.

Maryland Shipbuilding does not dispute the applicability of the general framework for resolving Jackson’s claim. It does contend, however, that when a party alleges discrimination in promotion rather than discrimination in hiring, “the courts” replace the fourth element of a McDonnell Douglas prima facie case with an absolute requirement that the claimant prove that he was equally or better qualified for the advancement than those employees actually promoted. Applying that principle to this action, Maryland Shipbuilding argues that, by failing to compare explicitly the relative qualifications of Jackson and those individuals promoted to lieutenant guard, the Commission erred as a matter of law in finding employment discrimination. We disagree with appellant’s characterization of the law.

Insofar as appellant’s argument asserts that Jackson failed to establish a prima facie case of discrimination, we reject it out of hand. The meritlessness of such a contention on appeal was, we believe, clearly settled by the Supreme Court in United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 , 103 S.Ct. 1478 , 75 ⁵⁴⁷ L.Ed.2d 403 (1983), in which the Court stated: “Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” Id. at 715 , 103 S.Ct. at 1482 . Maryland Shipbuilding argues, nevertheless, that the elements of a prima facie case remain relevant throughout the proceedings because “an element of a prima facie case is obviously an element of the overall violation.” Whatever truth may lie in that statement in some other context, it is directly contrary to the teaching of Aikens . Once the employer, in response to a complaint, undertakes to articulate nondiscriminatory reasons for failing to hire or promote the claimant, it is no longer of any concern whether the claimant has made out a prima facie case; the parties have gotten past that stage; and the only issue before the court is the ultimate question of fact: did the defendant intentionally discriminate against the plaintiff on the basis of race, color, religion, sex, age, national origin, marital status or a handicap which is unrelated to job performance?

In resolving that ultimate issue, the court is not to be burdened by elements and “legal rules which were devised to govern ‘the basic allocation of burdens and order of presentation of proof/ Burdine, 450 U.S. at 252 , [ 101 S.Ct. at 1093 ].” Aikens, 460 U.S. at 716 , 103 S.Ct. at 1482 . Accordingly, we find no error in the Commission’s alleged failure to consider an element of the prima facie case after it determined that Jackson had presented a facially sufficient claim of discrimination and the appellant had responded to it. Furthermore, Maryland Shipbuilding’s argument that “the courts” in promotion cases modify the McDonnell Douglas prima facie case is an overly broad statement of the law. The implication of general acceptance which results from appellant’s use of the words “the courts” is belied by an examination of the cases cited by Maryland Shipbuilding in support of its argument.

Appellant relies almost exclusively upon decisions rendered within the Fourth Circuit. E.g., Cuthbertson v. Biggers Brothers, 702 ⁵⁴⁸ F.2d 454 (4th Cir.1983); Lee v. Joseph T. Ryerson & Son, Inc., 36 F.E.P. 449 (W.D. N.C.), aff'd, 745 F.2d 51 (4th Cir.1984); Payne v. FMC Corp., 609 F.Supp. 1132 (S.D.W.Va.1985). The only cases from without the Fourth Circuit cited by appellant are Aikens v. Bolger, No. 77-0303, Slip Op. (D.D.C. Feb. 1, 1984), aff'd, 755 F.2d 181 (D.C.Cir.1985), and two decisions of the Maryland Commission issued prior to 1984.

Since Aikens v. Bolger was decided before the relative qualification approach was rejected in Mitchell v. Baldrige, 759 F.2d 80 (D.C.Cir.1985), and since the cited Commission decisions were filed prior to this Court’s opinion in Commission on Human Relations v. Washington County Community Council, Inc., 59 Md.App. 451 , 476 A.2d 222 , cert. denied, 301 Md. 354 , 483 A.2d 38 (1984), they are no longer persuasive. It would appear from appellant’s brief and our research that the Fourth Circuit stands alone in requiring a claimant to demonstrate relative qualifications as a part of his prima facie case of