Williams v. Maryland Department of Human Resources

ADKINS, Judge. John R. Williams, appellant, sued his former employer after it promoted a woman instead of appellant. He asserted sex discrimination, age discrimination, constructive discharge, and breach of contract claims against the State of Maryland Department of Human Resources (the “Department”), and Bert Finklestein, who was then Inspector General of the Department (collectively “appellees”). The Circuit Court for Anne Arundel County granted summary judgment in favor of appellees on all counts.

On appeal, appellant raises the following issues, which we have rephrased. I. Did the trial court err in granting summary judgment on the sex discrimination claim?

II

Did the trial court err in granting summary judgment on the age discrimination claim?

III

Did the trial court err in granting summary judgment on the constructive discharge claim on the grounds that appellant failed to comply with the Maryland Tort Claims Act?

IV

Did the trial court err in granting summary judgment on the breach of contract claim? ¹⁶¹ We shall affirm the judgments on all counts except for the sex discrimination claim. Because there was sufficient direct evidence that gender bias affected the employment decision, we shall reverse the judgment on that count, and remand for further proceedings. FACTS AND LEGAL PROCEEDINGS The Department hired appellant in May 1985. Eventually, appellant became a Fiscal Specialist II.

This job involved “prevent[ing], detect[ing] and eliminating] fraud, waste, mismanagement and corruption within the Department.... ” In late 1993, the Department announced that it was creating a new Fiscal Specialist III position “to serve as an auditor-in-charge.” According to Finklestein, the new position did not require supervisory experience. Eleven employees from the Department initially expressed interest in the position. In an affidavit, Finklestein stated that he informally interviewed each of the eleven candidates, and then selected three of them as finalists. Appellant was not chosen as a finalist.

Two of the three finalists were male and the other, Linda Heaton, was female. Each of the finalists was interviewed individually by a panel consisting of Finklestein and three other supervisors. In April 1994, the panel selected Heaton for the position. Finklestein stated in his affidavit that he did not choose appellant as a finalist because his “[interview was not as good as [the three] top candidates [and his] [a]bility to interact at [the] supervisory level [was] questionable.” During discovery, appellees produced memoranda detailing problems relating to appellant.

After being passed over for the promotion, in January 1995, appellant was referred to the Employee Assistance Program (“EAP”) 1 because of his inability to follow directions. ¹⁶² On March 26, 1998, appellant filed a complaint in the circuit court based on his failure to gain the promotion. After a hearing on appellees’ motion for summary judgment, the circuit court granted summary judgment on all claims against Finklestein, and on all claims against the Department except the sex discrimination count. After discovery, the Department renewed its motion on the sex discrimination count. The court granted the motion.

This appeal followed. Additional facts will be added as necessary to the following discussion. DISCUSSION Appellant contends that the trial court erred in granting summary judgment on all counts of appellant’s complaint. Accordingly, we shall address each count separately.

I. Standard Of Review Summary judgment is appropriate where there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Md. Rule 2-501. In reviewing the grant of a motion for summary judgment, we review the trial court’s ruling as a matter of law. See Fearnow v. Chesapeake & Potomac Tel.

Co., 104 Md.App. 1, 48 , 655 A.2d 1 , rev’d in part on other grounds, 342 Md. 363 , 676 A.2d 65 (1996) (1995). Additionally, we review the same information from the record and decide the same issues of law as the trial court. See Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591-92 , 578 A.2d 1202 (1990).

II

Discrimination Claims A. Sex Discrimination Claim Appellant contends that the trial court erred in granting appellees summary judgment on his sex discrimination claim ¹⁶³ under Title VII. See 42 U.S.C. § 2000e-2(a)(1). According to appellant, “the evidence of record establishes at the very least a question of fact on each and every element necessary to establish a prima facie case of discrimination under Title VII.” In his brief, he points to the following evidence of gender discrimination that he contends raised sufficient factual disputes to require denial of summary judgment: (1) testimony by a Department supervisor that others in the Department, including a member of the panel that selected Heaton, stated that a female had to be selected for the position; (2) evidence that he was more qualified than Heaton; and (3) evidence that the Department failed to follow its own rules and procedures in the promotion process. In the pretrial context of a motion for summary judgment, there are significant differences in the analytical framework and proof burdens depending on whether the employee’s evidence of discrimination is “direct” or “circumstantial” evidence.

These differences frame our review of this claim. For this reason, we first summarize the applicable law, and then proceed to consider whether appellant’s evidence was sufficient to raise a material dispute of fact preventing summary judgment on his sex discrimination claim. 1. Analytical Framework And Evidentiary Burdens An employee may prove that gender played a part in an employer’s decision not to promote the employee by using either direct evidence or circumstantial evidence. In this case, appellant has advanced both a direct evidence theory and a circumstantial evidence theory as grounds for reversal.

Accordingly, we shall review the nature of these alternative theories. “Evidence is ‘direct’ ... when it consists of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision.” Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir.2000); see also Taylor v. Virginia Union Univ., 193 ¹⁶⁴ F.3d 219, 232 (4th Cir.1999) (en banc), cert. denied, 528 U.S. 1189 , 120 S.Ct. 1243 , 146 L.Ed.2d 101 (2000). Generally, direct evidence is sufficient to establish a prima facie case of “mixed motive” discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250 , 109 S.Ct. 1775, 1791 , 104 L.Ed.2d 268 (1989). “Once there is credible direct evidence, the burden of persuasion shifts to the defendant to show that it would have [made the same employment decision] had it not been motivated by discrimination.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.1999). “In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman.” Price Waterhouse, 490 U.S. at 250 , 109 S.Ct. at 1790 .

The combination of gender and non-discriminatory reasons create the “mixed motive.” Circumstantial evidence will support a discrimination case when it meets the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). 2 This test involves proving a prima facie case of discrimination, which shifts to the employer the burden of offering a non-discriminatory reason for the contested employment decision. If the employer meets this burden, the employee must show that the employer’s stated reason for the ¹⁶⁵ decision was a pretext for discrimination. The employee may meet this burden with evidence tending to show that the assigned reason was false, and in this manner use circumstantial evidence to prove that discrimination occurred. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 , -, 120 S.Ct. 2097, 2104 , 147 L.Ed.2d 105 (2000).

Generally, mixed motive cases based on direct evidence of discrimination are more likely to survive summary judgment than pretext cases, which are discrimination cases that are based on circumstantial evidence. As the First Circuit recently recognized, there are significant advantages for an employee who can present sufficient direct evidence of discrimination to establish a mixed motive case. A plaintiff alleging disparate treatment ... usually proceeds by means of the familiar framework engendered in McDonnell Douglas Corp. v. Green,.... [TJhis approach [is] customarily called the “pretext” approach.... What is significant ... is that, under pretext analysis, the burden of persuasion remains with the plaintiff throughout the case.

In some situations, however, a plaintiff may be entitled to use an approach that relieves her of this unremitting burden of persuasion. The key that unlocks this door is the existence of direct evidence that a proscribed factor (such as age, gender, race, or national origin) played a motivating part in the disputed employment decision. See Price Waterhouse. Such evidence, if accepted by the factfinder, shifts the burden of persuasion to the employer, who then must establish that he would have reached the same decision regarding the plaintiff even if he had not taken the proscribed factor into account.

Although the plaintiffs initial burden under this “mixed-motive” approach is heavier than the de minimis showing required to establish a prima facie case under the pretext approach, most plaintiffs perceive the Price Waterhouse framework and its concomitant burden-shifting as conferring a pronounced advantage. In ¹⁶⁶ the average case, the employee thirsts for access to it, while the employer regards it as an anathema. Febres, 214 F.3d at 59 . Summary judgment is less likely in a mixed motive case because the employer bears the burden of convincing the fact finder that its motives, intent, and action were not tainted by discrimination.

Like other motive and intent issues generally, an employer’s “we would have done the same thing” defense to a mixed motive case of discrimination is ill-suited for resolution on summary judgment. The employer’s evidence of its intent must be weighed against the direct evidence of discrimination offered by the employee. Because “credibility determinations in respect to direct evidence [of discrimination] are for a properly instructed jury, not for the judge,” id. at 61 n. 3, the employer frequently may not obtain summary judgment once the employee has offered credible direct evidence of discrimination. See, e.g., Laderach v. U-Haul, 207 F.3d 825, 828 (6th Cir.2000) (reversing summary judgment based on plaintiffs direct evidence of discrimination).

In contrast, in a pretext case based on circumstantial evidence of discrimination, summary judgment may be predicated on an employee’s failure to satisfy the burden of production that it bears at two of three stages under the McDonnell Douglas model. If the employee fails to offer sufficient evidence to dispute the employer’s reason, summary judgment is appropriate. In Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000), the Supreme Court recently clarified this burden, holding that “[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the [employer’s] explanation that the employer is dissembling to cover up a discriminatory purpose.” Id. at -, 120 S.Ct. at 2108 . In doing so, the Reeves Court recognized that, to establish a prima facie case of discrimination, circumstantial evidence is generally not sufficient, by itself, to defeat an employer’s motion for summary judgment in a pretext case. ¹⁶⁷ B. Direct Evidence Of Sex Discrimination: “A Lady Had To Be Selected” Appellant offered the testimony of his immediate supervisor, John Belt, as direct evidence that the Department discriminated against him because he is male.

Belt testified at his deposition that during the selection process, “[tjhere was talk that a lady had to be selected for that position.” Apx81. He also testified that one of the persons who engaged in such “talk” was Harry Burns, the Department’s Director of Audits. Burns served with Finklestein on the panel that interviewed the three finalists and ultimately selected Heaton. These statements led Belt to believe that the position was not truly open to any of the male candidates.

Q: Do you believe that Mr. Williams was not chosen because he was a man? A: I believe that. Q: Would it surprise you to know there were 2 other men who were in contention for the job? A: I don’t know.

Q: Why do you believe that? A: There were certain talks around the office, there were certain statements and all which indicated that Linda Heaton was a frontrunner ... for the supervisory position, and it appeared because she was a female she had been selected. We had no females in a ... supervisory or managerial position within the audit unit. Q: There was some talk, some discussion.

Who was doing the talking and who was doing the discussing? A: We had discussions. It wasn’t a formal discussion or what have you. There was talk that a lady had to be selected for that position....

Q: [D]o you recall if that was discussion among some of the auditors in the place or do you recall who may have made that statement? ¹⁶⁸ A: I believe Mr. Burns made that statement. He said we had to select a female. Additionally right after I was supervising Linda Heaton at a Prince George’s County audit, and we were going out to the exit conference and Mr. Burns stated that we are fairly represented because we have a Jew, who was Bert Finklestein, we have a black, who was me, we have a female who is Linda Heaton, and we have a[c]aucasian who was Harry Burns so those types of remarks were made quite frequently---- Q: Now just so I am clear on all of that, Mr. Burns is the individual you recall having made that comment that a woman had to be selected for this position? A: Yes. 3 Appellant argues that Belt’s testimony about Burns’ statement is “direct evidence of bias and discrimination in the decision making process of an employer [that] indicates [the Department’s] stated reasons for a decision are pretextual and requires that the employee’s discrimination claim be submitted to a fact finder.” Appellees counter that at best, Burns’ alleged statement was merely an inadmissible “stray remark” that cannot be attributed to them because Burns was not involved in the decision not to promote appellant.

As we have discussed, direct evidence of a defendant’s discriminatory animus may be sufficient to raise a factual dispute as to whether the employer’s decision was motivated by both legitimate and discriminatory reasons. See, e.g., Laderach, 207 F.3d at 829-30 (reversing summary judgment for employer based on finding that fellow employee’s unrefuted testimony that supervisor stated that he would not promote plaintiff because she was a woman was sufficient direct evi ¹⁶⁹ dence of discriminatory animus to raise factual dispute). The issue raised in this case is whether Burns’ alleged statement constituted direct evidence of discrimination. In Price Waterhouse v. Hopkins, 490 U.S. 228 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989), the Supreme Court addressed when statements made by a supervisor will support a mixed motive sex discrimination claim.

In Price Waterhouse , a female employee supported her claim that she had been denied admittance into a partnership because of her gender with evidence that male partners made sexist comments in evaluating her candidacy. One partner described her as ‘macho;’ another suggested that she ‘overcompensated for being a woman;’ a third advised her to take ‘a course at charm school.’ Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only ‘because it’s a lady using foul language.’ Id. at 235 , 109 S.Ct. at 1782 . The Court held that remarks such as these will support a plaintiffs claim for sex discrimination because the comments support the conclusion that the decision not to admit the plaintiff to the partnership was based on “stereotypical notions about women’s proper deportment.” Id. at 256 , 109 S.Ct. at 1794 . The court cautioned, however, that not every remark made in the workplace will support a claim for sex discrimination.

Writing for a plurality of the court, Justice Brennan explained: Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision. In making this showing, stereotyped remarks can certainly be evidence that gender played a part. Id. at 251 , 109 S.Ct. at 1791 .

Several federal cases have addressed the circumstances when remarks by supervisors constitute direct evidence of unlawful discrimination. In Emmel v. Coca-Cola Bottling Co., 95 F.3d 627 (7th Cir.1996), the plaintiff contended that she was ¹⁷⁰ the victim of unlawful sex discrimination based on her being bypassed for several upper-management positions. In support of her position, the employee presented evidence that she had a longer career with the employer than the employees chosen for promotion, and that only men were promoted. Further, she presented evidence that a supervisor told her that she was “the only other one qualified” for the promotion and that “you know, as we all know, they wanted men in these positions-in the past....” Id. at 631.

She “also introduced evidence of a number of statements by the top officers at [the employer] indicating a corporate bias against women holding upper-management positions.” Id. at 632. The Seventh Circuit upheld a jury verdict in favor of the employee, explaining that the statements in question are more than just stray comments .... They are from the top policymakers in the company, the owner, president, vice president and two regional vice presidents, who are ultimately responsible for the company’s employment practices. They directly address the policy at issue, the employment of women in upper-management positions at the company....

The jury could readily conclude that the statements demonstrated a pervasive attitude that women do not belong in the upper echelons at [the employer]. Id. at 632. A similar result was reached in EEOC v. Alton Packaging Corp., 901 F.2d 920 (11th Cir.1990). In Alton, an employee, who had worked for the employer for a number of years, filed a race discrimination claim against his employer.

At trial, one witness testified that the general manager of the plant had stated “if it was his company, he wouldn’t hire any black people.” Id. at 922 . The Eleventh Circuit held this evidence was sufficient to support a claim of race discrimination because the general manager “was a decision maker, and he made the remark in reference to hiring.” Id. at 924 . Although discriminatory remarks are particularly probative if they are made by the ultimate decisionmaker with ¹⁷¹ respect to the contested employment action, direct evidence of discriminatory statements and actions by someone other than the decisionmaker also may be sufficient to raise a factual dispute. Courts have imputed the bias of an inferior employee to an ultimate decisionmaker when the inferior employee has had an opportunity to influence either the contested employment decision or the decisionmaker’s assessment of the employee.

See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir.1994). “Summary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action.” Id. at 1459 . In Dey , the Seventh Circuit held that evidence that an employee who expressed a discriminatory animus toward the plaintiff also gave an unflattering assessment of the plaintiffs job performance to the person who ultimately made the contested employment decision, was sufficient to establish