Muse-Ariyoh v. Bd. of Educ. of Prince George's Cnty.

Wilner, J. In June 2015, appellant, an African-American male born in Nigeria, filed this action in the Circuit Court for Prince George's County against his employer, the Board of Education for that county. He complained that (1) on five occasions, he was denied a promotion on account of his race and national origin in violation of unspecified Articles of the Maryland Declaration of Rights, unspecified sections of Md. Code, Title 20 of the State Government Article, and §§ 2-185 et seq. of the Prince George's County Code; (2) on the last four occasions, the denial also was in retaliation for his having complained to the Federal Equal Employment Opportunity Commission (EEOC) with respect to the first denial; and (3) in further retaliation of his complaint to EEOC, the Board disciplined him for alleged infractions and failed to conduct a timely annual review of his performance in 2014, which affected his eligibility for a salary increase. In November 2016, the court, following a hearing, granted the Board's motion for summary judgment based on the court's ultimate conclusion that "there is no evidence that a reasonable jury could find that indeed [appellant] was rejected for the position under circumstances giving rise to an inference of unlawful discrimination" and that "there is no evidence that a reasonable jury could find that indeed the Board did retaliate against the plaintiff." Hence, this appeal, in which appellant contends that the trial court erred in entering summary judgment (1) without considering his pending motion to compel discovery, (2) with respect to his retaliation claim, and (3) where, with respect to four of the denials, the job went to an individual outside of appellant's protected status; i.e. , someone other than an African-American male born in Nigeria. Before we venture into the facts and the intricacies of the law, we need to deal with a preliminary issue that requires a very brief summary of what will be set forth in greater detail hereafter.

Under clear Supreme Court precedent ( McDonnell Douglas Corp. v. Green , 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973) ), to prevail in an employment discrimination case where there is no direct evidence of unlawful discrimination- i.e. , where the evidence of discrimination is circumstantial in nature-the employee must first establish a prima facie case of unlawful discrimination. If the employee succeeds in doing that, the burden shifts to the employer to articulate a non-discriminatory basis for the action complained of. If the employer succeeds in that endeavor, the burden shifts back to the employee to establish that the non-discriminatory basis offered by the employer is a pretext and that the act complained of, in fact and in law, was the product of unlawful discrimination. The thrust of the Board's motion for summary judgment, as explained in the written memorandum filed in support of it, was that appellant had failed to establish a prima facie case of unlawful discrimination and unlawful retaliation.

In a three-sentence paragraph, the Board also claimed that the Board had articulated legitimate non-discriminatory reasons for its actions and, on that basis alone, appellant had failed to produce legally sufficient facts to support his claim of discrimination. In its oral argument on the motion, the Board noted the shifting burdens under McDonnell Douglas but focused its argument on the general proposition that appellant had failed to produce sufficient evidence of discrimination-that he had produced no evidence that the Board had found him more qualified than the candidates it selected. Although followed by a brief written Order, the court announced its ruling extemporaneously from the Bench. It found that appellant had shown that he was a member of a protected class (African-American and Nigerian), that he had applied for an open position, and that he was qualified for the position.

The court then noted that he "must show in a prima facie case that he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination" and concluded that "there is no evidence that a reasonable jury could find that indeed the plaintiff was rejected for the position under circumstances giving rise to an inference of unlawful discrimination." What is not entirely clear from this pronouncement is whether the court was holding that a prima facie case had not been established or that appellant had failed to show that the nondiscriminatory reasons articulated by the Board were pretextual. Appellant, almost in passing, raises this question in his brief. In other settings, this might be a problem, but here it is not. As we shall explain, even in the context of the McDonnell Douglas burden shifting protocol, the employee ultimately bears the burden of proving his claim of unlawful discrimination and, if he fails to do so, whether by failing to present a prima facie case initially or failing to show the employer's explanation was a pretext, the result is the same.

In this case, the Board did articulate non-discriminatory reasons for its actions and produced substantial evidence in support of that articulation, to which appellant responded, and whether we view that evidence as bearing on whether a prima facie case was established or whether pretext was established is largely immaterial. Because of the full record that was made (1,640 pages of Record Extract) and to avoid the need for further proceedings in the Circuit Court, we shall apply the full three-pronged McDonnell Douglas approach and not cut the analysis off at the prima facie stage. BACKGROUND Appellant is an architect by training. He first became employed by the Board in 1989 as a Construction Observer in the Board's Department of Planning and Architectural Services.

According to appellant, that job entailed his representing the Board on construction projects to ensure, through field observations, that all requirements were being met. From 1992 to 1995, he served as a Planning Assistant and, as such, became involved with the preparation of Capital Improvement Program budgets but still managed contractors' field activities. In 1995, he returned to the position of Construction Observer. In 2002, as a result of a structural reorganization of the Board's Building Services Department, appellant was laterally transferred to the Department of Capital Programs as a Facilities Coordinator.

In that position, he worked with other officials to determine priorities for renovations, repairs, or preventive maintenance and managed or partially managed several projects. First Denial: Director of Capital Programs In July 2012, the Board advertised a vacancy for the position of Director of Capital Programs. The Director is "responsible for performing advanced professional architectural advisory service duties in the planning, design, and engineering of new or existing educational facilities." Among other things, the Director acts as liaison between the Board, the County Government, and the Maryland-National Capital Park and Planning Commission with respect to schools, assists in determining sites and the development of standard space requirements, assists in planning and developing facility needs of the school system, and prepares feasibility studies for the replacement of and additions and renovations to existing facilities. Along with others, appellant applied for the position.

The Board interviewed the two applicants it deemed most qualified. Appellant was not one of them. Ultimately, the Board selected neither of the applicants it had interviewed (nor any that it had not interviewed) and withdrew the posting. Seven months later, in February 2013, it readvertised the vacancy in a new posting.

It appears that 24 individuals applied for the position on this second go-around. Appellant was not one of them. Four individuals were interviewed, including Sarah Woodhead, a white American female who, according to the record, had not submitted a formal written application but had inquired about the job, had been invited, apparently by the Board's Department of Human Resources, to be interviewed, and was regarded by the Board as an applicant. The interviews were conducted by a panel of five persons, who ranked the applicants based on nine initial interview questions and six follow-up questions.

Ms. Woodhead, who had 27 years of professional architectural experience in public policy, planning, and construction management, with a specialty in education infrastructure, was given the highest ranking. She received a composite score of 219, as compared with scores of 126, 157, and 159 for the other three. The interview notes of the panel members show as her strengths: • "Thorough experience and knowledge of all aspects of school design and construction, including State requirements and control of costs, • VERY knowledgeable of the work that needs to be done and has experiences that are connected to the job and expectations, • Really strong sense of how capital projects/construction process works, • In-depth knowledge of local school system CIP [Capital Improvement Program] world of work, • Quiet strength of leadership, • Embraces teamwork and empowerment, • Really good communicator." Unlike the other applicants, each of whom had identified weaknesses (and fewer strengths), no weaknesses were identified for Ms. Woodhead, and she was appointed. In October 2013, appellant filed a complaint with EEOC alleging that he was denied the appointment as a result of his race and national origin.

That appeared to be based on (1) his belief that Ms. Woodhead was less qualified than he because she had no experience with Prince George's County building codes, standards, and regulations or with local vendors or school officials, and (2) the fact that she had not applied for the job. When an attempt at mediation failed, his complaint was transferred to the Maryland Commission on Civil Rights (MCCR). MCCR never adjudicated the matter but authorized the filing of this action. Second Denial: Facilities Supervisor-Maintenance In April 2014, the Board advertised a vacancy for the position of Facilities Supervisor-Maintenance.

Under the direction of the Director of Building Services, that person assists, coordinates, and supervises staff responsible for the repair and physical condition of school facilities, facility management, maintenance, and construction/renovation work. Five persons, including appellant, were interviewed for the position by a five-member panel, including Ms. Woodhead. Based on answers to interview questions, appellant received the lowest composite score of 109. The others received scores of 123, 135, 144, and 160, respectively.

The panel regarded appellant's strengths as limited to his experience with the county school system and the fact that he was a licensed architect but identified as weaknesses unspecific responses to the interview questions, that his work had been project-focused rather than management oriented, that he was not "solution oriented," and a lack of management skills. In deposition testimony, Ms. Woodhead stated that appellant's responses were "nonspecific and rambling." The two top-ranked applicants were invited for second-level interviews, and one of them, Keith Wharton, whom appellant describes simply as "American," but more particularly is an African-American, got the job. Despite the fact that Mr. Wharton had 25 years of direct experience controlling, directing, and managing facilities maintenance departments and was regarded by the interviewing panel as "technically knowledgeable," appellant complains that Mr. Wharton was not qualified for the job because he had no knowledge of Board projects and no experience with Prince George's County codes, standards, or vendors. Third Denial: Architectural Project Manager A year later, in April 2015, the Board advertised a vacancy for the position of Architectural Project Manager.

The duties of that position were to perform advance design work and construction administration, direct drafting activities for assigned Capital Improvement Program projects, and review the work of outside consultants. Appellant and four other applicants were interviewed by a four-member panel, including Ms. Woodhead. Of the five applicants, appellant was ranked fourth, with a total composite score of 110, compared with scores of 105, 111, 121, and 138 received by the others. The panel feedback showed a number of strengths for appellant-26 years of experience with the Board; technical expertise; in his management of one program, he had saved the school system $10 million; experience with the press; good experience with contractor claims; and good knowledge of "several aspects" of school facilities.

The feedback also showed a number of weaknesses, however, including failure to answer directly some of the questions, concern regarding public speaking and interaction with the public, and failure to respond to a question regarding a previous challenge with a difficult employee. The position was given to the applicant who received the highest score, Ronald Skyles, an African-American male but not a Nigerian, with respect to whom the panel found as strengths: has technical qualifications, currently a Project Manager II in Capital Programs, clear understanding of k-12 architectural work, knowledgeable about architecture and design needs, and worked in government, private industry, and the school system. As in the other cases, appellant complained that Mr. Skyles was far less qualified than he because of his lack of experience with Board projects, standards, and vendors. Fourth Denial: Supervisor of Capital Programs A month after the interviews with respect to the Architectural Project Manager position, the Board advertised a vacancy in the position of Supervisor of Capital Programs.

The holder of that position is responsible for assisting the Director of Capital Programs relative to facility planning, administration, and coordination of the school facilities design and construction program and, under the direction of the Director of Purchasing, serves as a liaison to the Purchasing Department on the coordination of capital projects through the bidding and implementation phases. Sixteen more specific duties were listed. Appellant applied for the position. Three applicants, including appellant, were interviewed by a panel of three, including Ms. Woodhead.

The position was awarded to the applicant with the highest score-Mr. Onukwubiri, a Nigerian-born African American male who scored 112, as opposed to appellant's score of 84 and the third applicant's score of 83. The interviewers found some of the same weaknesses with appellant as were found in the earlier interviews-not answering questions directly and inconsistent and inaccurate responses, added to which was minimal insight into policies and procedures. Among appellant's complaints about that selection was that, in the announcement of the position, the Board stated that a license to practice architecture in Maryland was "preferred" and that Mr. Onukwubiri did not have such a license. He did have a bachelor's and a master's degree in architecture and had served for 17 years as Design and Construction Program Manager, Office of Support Services for the Queen Anne's County school system and five years as Senior Project Manager for the District of Columbia, and was then Project Manager II, Capital Programs for the Prince George's County Board.

Fifth Denial: Director of Building Services In November 2015, appellant applied for the position of Director of Building Services. Among the duties of that position are preparing the Building Services annual budget and exercising control over allocated funds, providing support for custodial services for all schools and administrative office buildings, and administering the Building Services Program for the school system. We are unable to locate in the Record Extract any information regarding an interviewing process or any scoring of the candidates. All we know from the record is that appellant was not interviewed and the job was given to Samuel Stefanelli, a white American whom appellant regards as less qualified than he.

DISCUSSION Although not citing the section, the Complaint presumably was filed pursuant to Md. Code, State Government Article, § 20-1013, which permits a complainant to bring a civil action alleging an unlawful employment practice by the respondent if (1) the complainant initially filed a timely administrative complaint under Federal, State, or local law alleging an unlawful employment practice by the respondent; (2) at least 180 days have elapsed since the filing of the administrative action; and (3) the civil action is filed within two years after the alleged unlawful employment practice occurred. The Board does not suggest that those conditions were not met. As noted, the Complaint alleges causes of action under the Maryland Declaration of Rights (Count III), Title 20 of the State Government Article (Count II), and the Prince George's County Code (Count I). No particular Article of the Declaration of Rights is mentioned, although appellant does allege that he was denied equal protection of the law, which is embodied without specific articulation in Art. 24.

Kirsch v. Prince George's County , 331 Md. 89 , 96, 626 A.2d 372 (1993). No particular section of the State Government Article is mentioned although, in his brief, appellant cites to §§ 20-606 (unlawful employment practices) and 20-1202 (permitting civil action for a discriminatory act prohibited by certain county codes, including the Prince George's County Code). The only section of the Prince George's County Code cited is § 2-222, prohibiting employers in the county from refusing to hire or acting against any person with respect to compensation or other terms or conditions of employment because of discrimination. The underlying basis of the Complaint, applicable to all three counts, is that (1) in each of the five instances, appellant was the most qualified candidate and was passed over because of his race or national origin, (2) his rejection in the last four instances also was in retaliation for his having complained to EEOC with respect to the first instance, and (3) as further acts of retaliation, (i) in March 2014, he was falsely accused by the Construction Manager for the Department of Capital Programs of leaving his worksite early and failing to perform his duties, (ii) in April 2014, he was again reprimanded by the Construction Manager for inappropriately inviting a contractor to a meeting prior to an award of the contract, (iii) in January 2015, he was falsely accused by the Project Manager Supervisor of unprofessional conduct and a reprimand was placed in his personnel file, and (iv) the Board failed to conduct a required annual review of his performance in 2014, which affected his opportunity for an increase in salary.

As noted, after considering the evidence presented for and against the motion, the trial court found no legally sufficient evidence to support those contentions. In his brief, appellant adds the argument that could not have been made in the Complaint-that the entry of summary judgment was inappropriate because of the pendency of his motion to compel discovery and the Board's admission that it had destroyed certain relevant documents that had been requested in discovery. The standard for reviewing the grant of a summary judgment was recently confirmed in Rogers v. Home Equity USA , 453 Md. 251 , 263, 160 A.3d 1207 (2017). Md. Rule 2-501(f) sets the general standard: a Circuit Court may grant summary judgment in favor of the moving party "if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." In reviewing the grant of summary judgment, the appellate court asks whether it was legally correct, without deference to the trial court.

In making that decision: "We evaluate 'the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the well-pleaded facts against the moving party'.... To defeat a defendant's motion for summary judgment, the opposing party must present admissible evidence 'upon which the jury could reasonably find for the plaintiff' " (Citations omitted)." Employment discrimination cases are subject to that standard, but special caution is necessary. As pointed out in Evans v. Technologies Applications & Service Co. , 80 F.3d 954 , 958-59 (4th Cir. 1996), "while courts must take special care when considering a motion for summary judgment in a discrimination case because motive is often the critical issue, summary judgment disposition remains appropriate if the plaintiff cannot prevail as a matter of law." That standard, with that caution, certainly would apply to the disposition of the substantive claims of unlawful racial and national origin discrimination in the denial of appellant's several applications for promotion and the claims of unlawful retaliation for appellant's engaging in the protected activity of complaining to EEOC regarding the denial of the first application. The issue of whether summary judgment should have been entered while the motion to compel discovery was pending is a procedural one that is subject generally to the noted standard-whether, construing the facts relevant to that issue in a light most favorable to appellant, the court should have proceeded as it did-but in a different context.

We shall deal with that issue first. Pendency of Discovery Motion Appellant's Motion to Compel Discovery sought three categories of relief: (1) Clear and legible copies of Clarence Stukes's and Sarah Woodhead's interview notes; 1 (2) Complete interview notes associated with the failure to promote appellant to the positions of Architectural Program Manager, Supervisor of Capital Programs, and Facilities Supervisor-Maintenance; and (3) The ability to reconvene the deposition of Clarence Stukes after that discovery has been provided. That motion was pending when the motion for summary judgment was heard. Appellant argued it as part of his argument against the summary judgment motion, and the Board responded.

The court questioned appellant's attorney regarding his argument on that motion but made no reference to it when granting summary judgment. The court obviously was aware of the motion and, at least inferentially, found it to be no impediment to ruling on the motion for summary judgment. The essence of appellant's complaint in this regard is that: (1) he had requested but never received a copy of any application by Ms. Woodhead for the position of Director of Capital Programs; (2) the copies of Clarence Stukes's interview notes with respect to the Facilities Supervisor-Maintenance position were faint; (3) Ms. Woodhead's interview notes for the Architectural Project Manager position were blank; and (4) panel member interview notes regarding the Supervisor of Capital Programs position were absent. With respect to an application from Ms. Woodhead, it seems to be clear, as previously noted, that she never submitted a formal written application but called Mr. Stukes, whom she knew, about the position, was told to contact the Human Resources Department, which apparently she did, in light of her interest and experience was invited to interview, and was regarded by the Board and the interview panel as an applicant notwithstanding the absence of a formal written application.

Appellant has argued the lack of a formal application by Ms. Woodhead as evidence of discrimination against him. We conclude, however, that the failure to produce a document that apparently never existed has not prejudiced him in pursuing that argument. With respect to the interview notes, the Board, in response to appellant's motion, contended that it had included in its production of requested documents the complete interview files it maintained for the relevant positions. It stated that, under its record management policy, all interview files are scanned and saved as electronic PDF documents, which are identical to the paper documents, that the paper documents are then destroyed, and that the electronic documents were produced.

The Board stated also that it does not maintain more legible versions of the files produced in discovery, including the notes of Mr. Stukes. Those statements were confirmed in attached affidavits, and no evidence was produced that they are untrue or inaccurate. 2 Apart from that, appellant had Ms. Woodhead's and Mr. Stukes's deposition testimony regarding the interviewing process and their perceptions of the various candidates' strengths and weaknesses. The Board's principal defense to appellant's claim is that the paper documents in question were immaterial with respect to whether summary judgment should be entered. Mr. Stukes was one of five on the interview panel that selected Ms. Woodhead.

Appellant had not only the scores of each panel member with respect to each candidate interviewed but also the written perceptions of each panel member to the answers given by Ms. Woodhead to each of the interview questions. The issue raised by appellant is whether the loss, destruction, or illegibility of interview notes in an employment discrimination case suffices to forestall the entry of summary judgment for the employer by raising an inference that the decision was not, in fact, as posited by