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holding that the plaintiff failed to establish that he was qualified for the position at issue, and emphasizing that it was undisputed that the resume the plaintiff submitted did not reference any supervisory experience
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CIVIL NO. CCB-04-1660.
February 2, 2009
MEMORANDUM
Now pending before the court is a motion for summary judgment filed by defendants Board of Education of Baltimore County ("Board") and Charles Jenkins ("Jenkins") (together "defendants") against plaintiff Fred Wallace ("Wallace"). Wallace asserts several claims related to his employment with the Board under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1983, 42 U.S.C. § 1981, and Article 24 of the Maryland Declaration of Rights. The issues in this motion have been fully briefed and no hearing is necessary. For the reasons stated below, the defendants' motion will be granted.
Wallace alleged violations of the Maryland Declaration of Rights in the complaint. Neither the defendants' motion for summary judgment nor the plaintiff's opposition specifically reference the state constitutional claim. Because all of Wallace's claims arise from the same factual allegations, which, as discussed below, fail to raise a genuine issue for trial, the court will grant summary judgment as to all claims in the complaint.
BACKGROUND
Wallace, who is African American, began his employment with the Board in July 2001 as a part-time security officer working 20 hours per week in the Department of Physical Facilities ("DPF"). He was assigned to DBF headquarters where he monitored alarm systems and directed security guards or police officers to respond to activated alarms. Despite his part-time status, Wallace received fringe benefits including vacation leave, sick leave, and paid floating holidays, and he was covered under the American Federation of State, County and Municipal Employees Union ("Union") contract. In August 2004, Wallace was hired as a full-time security patrol officer. This litigation stems from events that transpired between Wallace's hiring in 2001 and his eventual promotion to a full-time position in 2004.
When Wallace started his job in 2001, he often was assigned overtime and, for a time, worked up to 60 hours a week. After a few months, defendant Jenkins became Wallace's supervisor, and shortly thereafter, overtime hours for security patrol guards were significantly reduced. Beginning in early 2002, Wallace informed Jenkins on several occasions that he was interested in becoming a full-time employee, and, according to Wallace, Jenkins promised to consider him for future positions. Wallace also informed Barbara Utz ("Utz"), the lead patrol guard at DBF, of his desire for full-time employment.
In August 2002, Wallace learned that the Board intended to create some full-time security positions. According to Wallace, he was not considered for these positions despite his conversations with Jenkins and Utz. In October 2002, the Board hired three white security guards to fill the new positions. Two of the new hires, James Stealey ("Stealey") and Marion Todd ("Todd"), were hired as contractual non-employees to work as full-time security patrol guards without fringe benefits. Their duties included patrolling assigned locations. The third patrol guard, David Eckenrode ("Eckenrode"), was hired as a part-time employee with benefits. After the new security guards came on duty, Wallace claims his overtime hours were further reduced and he returned to his original schedule of 20 hours per week.
Wallace filed an internal complaint of race discrimination in December 2002, alleging that Jenkins discriminated against him by refusing to consider him for the full-time security guard positions and instead hired white candidates at a higher rate of pay. Soon thereafter, he complained that Jenkins attempted to reduce his hours in retaliation for filing the original charge. An internal investigation concluded Wallace's claims were unsupported. On or around March 17, 2003, Wallace filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") alleging that Jenkins refused to consider him for the full-time security positions based on his race and instead hired white candidates.
On March 7, 2003, the Board announced a job vacancy for a full-time security supervisor position. The posting listed the required qualifications for the position, including, inter alia, two years of experience supervising or leading others in the fields of security, law enforcement, or military policing. On March 15, 2003, Wallace submitted an application to the Board's Department of Human Resources. Penny Hobbs ("Hobbs") and James Lipan ("Lipan"), human resources employees, screened the application materials and selected qualified applicants to interview for the position. Hobbs and Lipan selected eight applicants, including one African American applicant. They did not select Wallace. Along with their motion for summary judgment, the defendants submitted a sworn affidavit from Hobbs (Defs.' Mot. for Summ. J. Ex. B), who maintains that she was assigned to her position shortly before the screening process, that she was unaware of Wallace's race, and that she did not know that he had recently filed a charge of discrimination when she reviewed his application. She also averred that she and Lipan both concluded that Wallace lacked the supervisory experience required for the job. Ultimately, Todd was selected to fill the security supervisor position. After his non-selection, Wallace filed another internal grievance. In April 2004, he filed a second charge with the EEOC alleging he was not selected for the security supervisor position because of race discrimination and in retaliation for filing his original charge.
In January 2004, Wallace filed his complaint in state court, seeking injunctive relief and compensatory damages under Title VII, 42 U.S.C. §§ 1981 and 1983, and the Maryland Declaration of Rights, which the defendants removed to this court in May 2004. In August 2004, the court stayed the proceedings to allow the plaintiff to exhaust his administrative remedies, and, in July 2007, after the federal government issued Wallace a right to sue letter, the court lifted the stay and referred the action to a magistrate judge for settlement purposes. The parties were unable to resolve the dispute, and, on August 15, 2008, the defendants filed a motion for summary judgment. Attached to his opposition, Wallace filed an affidavit from Reginald Downing ("Downing"), a Union representative (Opp. Ex. 17). Downing asserts that, during the course of two meetings convened to discuss Wallace's internal grievances, two Board employees — Rita Hill ("Hill"), a paralegal in the Board's law office, and Don Krempel ("Krempel"), executive director of DPF — made statements pertaining to Wallace's qualifications for the security supervisor position. Downing contends that in a meeting on March 13, 2003, Hill stated that Wallace "was more than qualified for the security supervisor position based on his previous job experiences and knowledge of law enforcement," and, further, that he "should have Charlie Jenkins's position." ( Id. at 2.) Downing also claims that in a meeting on July 30, 2003, Krempel stated that "Wallace had more qualifications than Charles Jenkins." ( Id.)
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court has clarified this does not mean that any factual dispute will defeat the motion. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original)."A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
A. Race Discrimination
The plaintiff alleges race discrimination based on the Board's failure to promote him to a full-time employee and failure to select him for the supervisor position. Because Wallace does not present direct evidence of racial discrimination, these claims are properly analyzed under the three-pronged burden shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, Mr. Wallace must first make out a prima facie case of discrimination under Title VII. If he succeeds in carrying this initial burden, then "the burden shifts to the employer . . . `to articulate a legitimate, nondiscriminatory reason for the adverse employment action.'" Lettieri v. Equant Inc., 478 F.3d 640, 646 (4th Cir. 2007) (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc)). Once such a reason is provided, the burden shifts back to the plaintiff to demonstrate that the given reason was a pretext for unlawful discrimination. Id.
To establish a prima facie case of discrimination in the denial of a promotion a plaintiff must show that: (1) he is a member of a protected group; (2) his employer had an open position for which he applied or sought to apply; (3) he was qualified for the position; and (4) he was rejected under circumstances giving rise to an inference of discrimination. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005); Evans v. Tech. Applications and Serv. Co., 80 F.3d 954, 959-60 (4th Cir. 1996); see also Gairola v. Va. Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985) ("Under Title VII and either § 1981 or § 1983, the elements of the required prima facie case are the same.").
It is not necessary for the plaintiff, in establishing a prima facie case, to show that he was better qualified for the position. Anderson, 406 F.3d at 269.
i. Failure to Promote to Full-Time Employee
Wallace clearly satisfies the first element of the prima facie case, as he is a member of a protected group. The facts surrounding the remaining elements are not as clear cut. Wallace offers evidence that he told Jenkins and Utz on several occasions that he was interested in full-time employment with the Board; however, he does not provide any affirmative evidence that he formally applied for the security positions filled by Stealey, Todd, and Eckenrode that he complained about in his internal grievance and EEOC charge. As to the third element, the record does not indicate the particular qualifications required for the full-time security officer positions offered to Stealey and Todd, and Wallace purports to have been qualified for all positions at issue in this litigation. As to the fourth element, it is undisputed that the three new hires, two of whom were selected for full-time positions, were white, and the plaintiff is African American. While Wallace fails to offer substantial evidence as to the latter three elements, the court notes that establishing a prima facie case is a "relatively easy test," see Young v. Lehman, 748 F.2d 194, 197 (4th Cir. 1984), and, viewing all evidence in the light most favorable to the plaintiff, the court will assume that Wallace has made out a prima facie case of discrimination.
Wallace submitted evidence that he formally applied for, and did not receive, a full-time position in the Board's Office of Investigation and Records Management in November 2002, after the three white security officers were hired. Neither party identified who was selected to fill this position, and it was not included in Wallace's charge of discrimination.
As evidence of his qualifications, Wallace cites the alleged statements of Hill and Krempel contained in the Downing affidavit. Putting aside, for now, the admissibility of this evidence, the court notes that the alleged statements did not specifically reference the particular qualifications required for any of the positions at issue in this litigation.
The Board, however, has articulated a legitimate, nondiscriminatory reason for Wallace's non-selection for the full-time security officer positions: his alleged unwillingness to perform certain functions of the job. Specifically, the defendants contend that Wallace was unwilling to drive a patrol car, patrol schools at night, or wear a uniform, all functions that Todd and Stealey were willing to perform. Wallace does not offer any affirmative evidence to refute this allegation. Rather, he appears to rely merely on the Board's failure to consider him for any full-time positions despite Jenkins's promises to the contrary. While such an allegation may help establish a prima facie case of discrimination, it is insufficient to demonstrate that the Board's nondiscriminatory reason for his non-selection is pretext.
ii. Failure to Promote to Security Supervisor
With regard to the security supervisor position, Wallace has failed to make out a prima facie case. It is undisputed that Wallace is a member of a protected class and that he applied and was rejected for the position in question. Wallace has failed to show, however, that he was qualified for the job. The evidence demonstrates that the security supervisor position required two years of supervisory experience, and it is undisputed that the resume Wallace submitted did not reference any supervisory experience. While Wallace generally avows that his "qualifications were more than adequate for the positions he sought" (Opp. at 23), he has failed to provide any evidence that he had the supervisory experience required for the position. He cites Hill's and Krempel's alleged statements regarding his superior qualifications; however, neither of these employees was involved in the selection process and their generic statements say nothing of the specific supervisory requirements. Further, the evidence submitted by the defendants demonstrates that Todd, the white applicant selected for the position, had the requisite supervisory experience. In light of the evidence in the record, Wallace cannot establish he was qualified for the position, thus his prima facie case of race discrimination fails on this ground. See Settle v. Baltimore County, 34 F.Supp.2d 969, 1001 (D. Md. 1999) (stating that Title VII plaintiffs may not "rest on the unarticulated premise that because they are African American, and because they subjectively perceive that defendants have inflicted employment injuries upon them, they have satisfied the requirements of a prima facie case").
Even assuming the plaintiff has made out a prima facie case of discrimination, the Board has a articulated a legitimate, non-discriminatory reason for not selecting Wallace for the position: the applicants selected to interview for the position were more qualified than Wallace and had the requisite supervisory experience. See Young, 748 F.2d at 198. To establish pretext, Wallace offers his own opinion that he was qualified for the position and the alleged statements of Hill and Krempel. In regard to Wallace's own opinions, the Fourth Circuit has made clear that "[i]t is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff." Evans, 80 F.3d at 960-61 (4th Cir. 1996) (internal quotations and citation omitted). Moreover, putting aside the admissibility problems of the alleged hearsay statements contained in Downing's affidavit, see Greensboro Prof'l Fire Fighters Ass'n v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995), the opinions of other Board employees regarding Wallace's qualifications "fail[] to prove as a reasonable probability" that the Board's proffered nondiscriminatory reason is pretext for retaliation. See DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998); see also Anderson, 406 F.3d at 269 (stating that candidates for promotion must compete based on qualifications established by the employer, rather than their own criteria for judging their qualifications). Thus, Wallace cannot establish pretext, and his claim of race discrimination cannot survive summary judgment.
B. Retaliation
Wallace also claims that he was not selected to interview for the security supervisor position in retaliation for filing his original EEOC charge. Retaliation claims, like substantive discrimination claims, are analyzed under the McDonnell Douglas burden-shifting framework, but the requirements for a prima facie case of retaliation differ. To make a prima facie case of retaliation under Title VII, Wallace must show that: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal nexus between the protected activity and the adverse action. McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir. 1991).
The Board does not dispute that Wallace has satisfied the first two elements of a prima facie case of retaliation, but contends that he has failed to sufficiently demonstrate a nexus between his complaint of race discrimination and the Board's refusal to interview him for the supervisor position. "To satisfy the third element, the employer must have taken the adverse employment action because the plaintiff engaged in a protected activity." Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). The burden at this stage, however, is not onerous, Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989), and is met when a plaintiff can show that the "defendant was aware of . . . the protected activity" and that there was "some degree of temporal proximity to suggest a causal connection." Constantine v. Rectors Visitors of George Mason Univ., 411 F.3d 474, 501 (4th Cir. 2005). Here, Hobbs, the human resources employee in charge of selecting applicants to interview for the position, denied even knowing Wallace or that he had filed a discrimination charge when she reviewed his application. Wallace offers no evidence to the contrary, other than his own uncorroborated belief that Jenkins influenced Hobbs's decision. Thus, Wallace has failed to establish the third element of his prima facie case of retaliation.
Even assuming that Wallace has presented a prima facie case of retaliation, his claim does not survive summary judgment. The Board has articulated legitimate, non-retaliatory reasons for Wallace's non-selection, namely his lack of supervisory experience. As discussed above, Wallace's evidence of pretext is unavailing. Accordingly, the court will grant the Board's motion for summary judgment on the Title VII retaliation claim.
C. § 1983 and § 1981 Claims
In light of the court's conclusion that Wallace's Title VII claims for racial discrimination and retaliation cannot survive summary judgment, his §§ 1981 and 1983 claims based on the same allegations also must fail. See Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998) (citing Gairola, 753 F.2d at 1285). Therefore, the individual defendant, Jenkins, is entitled to summary judgment on the federal constitutional and statutory claims asserted against him for the same reasons that the Board is entitled to summary judgment for the Title VII claims.
D. Violation of Maryland Declaration of Rights
Wallace also accuses the defendants of violating Article 24 of the Maryland Declaration of Rights by discriminating against him based on his race and retaliating against him. These claims fail for the same reasons as do Wallace's Title VII claims discussed above.
Article 24 provides "[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land." Md. Const. Decl. of Rts. art. 24.
CONCLUSION
For the foregoing reasons, the court will grant the defendants' motion for summary judgment on all counts. A separate order follows.ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. the defendants' motion for summary judgment (docket entry no. 40) is GRANTED; and
2. the Clerk shall CLOSE this case.