Opinion
Civil No. JFM-00-3468.
November 27, 2000
MEMORANDUM
Plaintiff Linda Jones ("Jones") has brought this action under federal law against Defendant Giant Food, Inc. ("Giant") for employment discrimination. She asserts claims for race discrimination and age discrimination. She also asserts claims under state law for breach of contract and wrongful discharge. Discovery has been completed, and Giant has moved for summary judgment. The motion will be granted.
I.
In October 1995, Jones was hired by Vistech, a temporary placement company, and assigned to Giant. Jones, an African American, was 40 years old when she was hired. According to Jones, Giant said that she would become a permanent employee at Giant after six months. After six months, Giant could hire Jones without having to pay a finder's fee to Vistech. Jones was assigned to the accounts payable department in Giant's Information Systems department where she worked as a computer programmer. Jones was paid by Vistech, but she worked at Giant, was supervised by Giant
employees, and was assigned the same work as other Giant programmers.
After working at Giant for six months, Mark Bletsh ("Bletsh"), one of her supervisors, asked Jones if she wanted to become a permanent employee of Giant. He said that in order to become a permanent employee, Jones must take the Aptitude Assessment Battery: Programming ("the Wolfe test"). The Wolfe test is designed to evaluate computer programming aptitude. The test is used by more than 2,000 organizations. Giant asserts that the Wolfe test is required of all potential Giant programmers and is the key criterion in determining who is qualified. Giant requires that a candidate for a programming position score in the top 1/3 percentile on the Wolfe test. Jones took the Wolfe test and scored in the 8th percentile. Because Jones fell well short of Giant's qualifications, Giant did not offer her a permanent programming position. In June 1996, Giant notified Jones that her temporary assignment was over.
Giant makes minor adjustments on the employee's raw score based on whether the employee has a college degree. Giant also allows for retests for Giant employees with a sufficiently high raw score. Jones did not have a college degree, and she did not score high enough for a retest.
II. A.
Jones argues that her discharge by Giant was discriminatory under Title VII. See 42 U.S.C. § 2000 et seq. To establish a claim for discriminatory discharge, Jones must prove that: (1) she is a member of a protected class; (2) she was qualified for the job and performed the job satisfactorily; (3) she was discharged; and (4) following her discharge, the position remained open or she was replaced by someone of comparable qualifications outside of the protected class. See Carter v. Ball, 33 F.3d 450, 458-59 (4th Cir. 1994).
Giant argues that Jones was never an employee, and therefore she could not be discharged. For the purpose of discussing Jones's discriminatory discharge claim, the Court will assume that she was an employee and was discharged.
Jones asserts many of her discrimination claims under 42 U.S.C. § 1981 as well as Title VII. The elements of proof are the same under both statutes. See Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998). Jones also asserts claims under 42 U.S.C. § 1985 and 1986. These claims fail for the same reasons as do Jones's underlying substantive claims. Moreover, she has made only conclusory allegations that an unlawful conspiracy existed. This is insufficient. See Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995).
Jones cannot establish that she was replaced by someone of comparable qualifications outside of the protected class. Jones points to three people, Karen Crawford ("Crawford"), Kathy Jackson ("Jackson"), and Stephen Johnson ("Johnson"), who were hired to replace her. As an initial matter, Jackson and Johnson are both African American and cannot satisfy the requirement that they are outside of the protected class. (Jones Dep. at 149); (Cooper Aff. ¶¶ 9, 10). Crawford, however, is Caucasian, and she is outside of the protected class.
Additionally, Giant argues that these three employees cannot be considered Jones's replacements because they were hired before she was discharged. But, under some circumstances an employer might hire a replacement before discharging an employee. The Court will assume for purposes of discussion that Crawford, Jackson, and Johnson were Jones's replacements.
However, Jones's qualifications are not comparable to those of Crawford, Jackson, or Johnson. An employer is free to set their own objective performance standards so long as those standards do not mask discrimination. See Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997). Giant required all potential programming employees to take the Wolfe test, which Giant considered to be the "key technical criteria" in evaluating an employee's qualifications. (Wolfe Test Guidelines, Ex. 3; Am. Compl. ¶ 62(b) ("The test was mandatory and given to all employees."); Schoening Dep. at 101.)
Jones argues that Giant did not require the test for all potential programming employees. However, she supports her arguments by quoting Schoening's Deposition out of context. (Pl.'s Mem. Opp'n. Summ. J. at 17; Schoening Dep. at 99-101). She also relies on Leonard Hill, who was hired without passing the Wolfe test. However, Hill was hired as a Database Administrator, which was not a programming position. (Def.'s Reply Mem. Supp. Summ. J. at n. 6.) Jones also makes the unsupported, conclusory allegation that the test was designed "to weed out blacks." (Pl.'s Mem. Opp'n. Summ. J. at 18.) This statement in Jones's Opposition is insufficient to create a material issue of fact.
Giant required its employees to score in the top 1/3 percentile in order to be considered qualified for a programming position. (Schoening Dep. at 99-101.) Crawford, Jackson, and Johnson all scored in the top 1/3 percentile of the Wolfe test. (Copper Aff. ¶¶ 9-11). Jones scored in the 8th percentile of the Wolfe test, well below Giant's performance standard. (Aptitude Assessment Battery: Programming Evaluation Report, Ex. 2; Cooper Aff. ¶¶ 5-8.) Jones cannot show that she was replaced by employees of comparable qualifications because Crawford, Jackson, and Johnson were more qualified.
Jones argues that she had been performing her job well for six months when Giant decided to give her the Wolfe test. However, even if true, Giant can set its own performance standards. See Beall, 130 F.3d at 619; Afande v. Nat'l Lutheran Home for the Aged, 868 F. Supp. 795, 802 (D. Md. 1994). Under Giant's standards, the Wolfe test was a key factor, and Jones's replacements scored considerably higher than Jones. The fourth prong of the prima facie case is not satisfied because Giant decided to replace Jones with candidates it considered more qualified.
In her Opposition, Jones suggests that Giant used the Wolfe test as a mask for retaliating against her because she complained about the volume of a co-worker's music. However, according to Jones's Deposition, she complained about her co-worker's music in May 1996, and she took the Wolfe test in April 1996. (Jones Dep. at 86-87, 218.) The chronology does not support retaliation.
B.
Jones argues that Giant's failure to hire her was discriminatory. To show a prima facie case of discriminatory hiring, Jones must prove that: (1) she is a member of the protected class; (2) she applied for the position in question; (3) she was qualified for the position; and (4) she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. See Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1998). As discussed above, Giant considered the Wolfe test to be the key criterion in determining whether an employee was qualified for a programming position. Jones failed the Wolfe test. As a result, she fails the third prong because she was not qualified for a programming position.C.
Jones also states her discriminatory hiring and discharge claims under the Age Discrimination in Employment Act ("ADEA"). See 29 U.S.C. § 623(a)(1). As part of her prima facie case, Jones must show that she was qualified or replaced by employees of comparable qualifications. See O'Conner v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996). As discussed above, because Jones did not pass the Wolfe test, and Crawford, Jackson, and Johnson did, Jones cannot state a claim under the ADEA.
III.
Jones's final claim is for wrongful discharge under Maryland law. To state a claim for wrongful discharge, Jones must show that her termination contravened a clear mandate of public policy. See Orci v. Insituform E., Inc., 901 F. Supp. 978, 982 (D.Md. 1995); Chappell v. Southern Md. Hosp., Inc., 578 A.2d 766, 768-71 (Md. 1990). The purpose of the tort of wrongful discharge is to vindicate a public policy in the absence of any possible civil remedy. Chappell, 578 A.2d at 768-71. As a result, a tort for wrongful discharge does not exist if a statute provides a remedy for vindicating the public policy at issue. See id. "Preclusion . . . applies only when the public policy sought to be vindicated is expressed in a statute which carries its own remedy for vindicating that public policy." Insignia Residential Corp. v. Ashton, 755 A.2d 1080, 1086 (Md. 2000); Makovi v. Sherwin-Williams Co., 561 A.2d 179, 182 (Md. 1989).
Makovi held that federal and Maryland anti-discrimination laws create a public policy to prevent discrimination in employment settings and create a civil remedy to vindicate that public policy. Id. at 182. Therefore, wrongful discharge suits for employment discrimination are generally precluded. See id. In contrast, in Insignia, a woman employee was fired for refusing to have sex with her employer under circumstances that would have amounted to prostitution. Insignia held that a wrongful discharge action was not precluded because Maryland's anti-prostitution statutes created a clear public policy but did not create a cause of action. Id. at 1086. The present case is controlled by Makovi, not Insignia. As Makovi held, federal and Maryland anti-discrimination statutes create a public policy and a remedy for vindicating that public policy. Jones has not pointed to a statute that creates a relevant public policy and does not create a civil remedy for vindicating that policy. Therefore, her wrongful discharge claim is precluded.
IV.
Jones claims that Giant breached its employment contract with her. The parties dispute whether Jones was ever offered an employment contract. But, assuming Jones had a contract to be a permanent employee with Giant, she still cannot state a claim. (Jones Dep. at 47-49.) Permanent Giant employees who work as programers are at-will employees. (Gofreed Aff. ¶ 7.) Jones has not rebutted Giant's assertion that, like other permanent Giant programers, she would have been considered an at-will employee. Under Maryland law, an at-will employment contract can be terminated by either party at anytime. See Adler v. American Standard Corp., 432 A.2d 464, 467 (Md. 1981) ("[A]n employment contract of indefinite duration, that is, at will, can be legally terminated at the pleasure of either party at any time.") Therefore, even if Jones had a contract to be a permanent Giant employee, Giant did not breach when it discharged her.
A separate order effecting the rulings made in this opinion is attached.
ORDER
For the reasons stated in the accompanying memorandum and the memoranda entered this day in Muhammad v. Giant Food, Inc., et al., it is, this 27th day of November 2000 ORDERED that defendants's motion for summary judgment is granted and judgment is entered in favor of defendants and against plaintiff.