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Donald S. Dobkin v. the University of Baltimore School of Law

March 22, 2013

DONALD S. DOBKIN
v.
THE UNIVERSITY OF BALTIMORE SCHOOL OF LAW



The opinion of the court was delivered by: Hotten, J.

REPORTED

Zarnoch, Hotten, Kenney, James A., III (Retired, Specially Assigned), JJ.

Opinion by Hotten, J.

Appellant, Donald Dobkin ("Mr. Dobkin"), filed a complaint in the Circuit Court for Baltimore City against appellee, the University of Baltimore School of Law ("U.B."), alleging that U.B. failed to hire him as an immigration law professor when he was fifty-six years of age, due to age discrimination,*fn1 in violation of the Md. Code (1984, 2009 Repl. Vol., 2012 Supp.), § 20-606(a) of the State Government Article.*fn2 He alleged that U.B. hired a thirty-two year old woman, who was less experienced and qualified for the position. U.B. averred that the successful applicant*fn3 possessed qualifications that appellant lacked, including experience and training in clinical teaching. Following discovery, U.B. filed a motion for summary judgment, asserting that appellant failed to provide sufficient evidence to support his claim. Appellant opposed the motion, contending that there were questions of fact regarding whether U.B. discriminated against him based on his age and whether it had a practice of discriminating against older applicants, which resulted in a disparate impact. The circuit court granted U.B.'s motion for summary judgment. Appellant noted an appeal, and presents two questions for our consideration:

1. Whether the circuit court erred in granting summary judgment as to count I, disparate treatment based on age, where the record evidence showed that Dobkin's qualifications were demonstrably superior to those of the hiree and UB presented shifting and inconsistent explanations for not interviewing or hiring him[.]

2. Whether the circuit court erred in granting summary judgment as to count II, disparate impact based on age, where the record evidence showed that UB has never hired any entry-level candidates who were over the age of 40[.]

For the reasons that follow, we affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2009, U.B. posted an advertisement on the Association of American Law Schools ("AALS") Bulletin, seeking applicants relating to three teaching positions for the 2010 - 2011 academic year. The advertisement read as follows:

THE UNIVERSITY OF BALTIMORE SCHOOL OF LAW* seeks entry level or experienced faculty for tenure-track or tenured positions beginning in the 2009 - 2010 academic year. We invite applications from candidates who have a distinguished academic background, a record of or the promise of both teaching excellence and scholarly distinction, and a commitment to service in law school and the community. A wide range of teaching interests will be considered, including but not limited to commercial law, intellectual property, immigration, environmental law, contracts, property, criminal law, and torts.

Positions will remain open until filled but applicants are encouraged to apply as soon as possible to receive full consideration. In keeping with its commitment to a diverse faculty, the law school welcomes applications from all qualified candidates and encourages women and minorities to apply . . .

Approximately 833 applicants applied for the faculty positions, including appellant and the successful applicant. According to her resume, the successful applicant graduated from the University of Michigan - Ann Arbor in 1999. After her undergraduate studies, she interned with the American Civil Liberties' Union ("ACLU") Immigration Rights Project. She then matriculated to Yale University Law School, where she supervised students and facilitated classes as the Student Director of the Immigration Legal Services Clinic. She graduated in 2003, and became a member of the New York Bar Association. From 2003 to 2005, she was a faculty fellow at Seton Hall University School of Law's Immigration/Human Rights and Civil Litigation Clinics, and designed course work, facilitated seminar classes, and supervised law students in proceedings concerning asylum, human trafficking, immigrant labor rights, and criminal immigration issues. From 2005 to 2008, the successful applicant clerked for judges on the United States ("U.S.") District Court and U.S. Court of Appeals for the Second Circuit. In 2008, she became a clinical teaching fellow at Georgetown University Law Center, where she attended a course on clinical pedagogy, taught law students in the asylum law clinic, and published an article in the Georgetown Immigration Law Review.

As stated in appellant's resume, he obtained his Bachelor of Laws degree from the University of Windsor in Ontario, Canada, where he graduated in the top fifteen percent of his 1975 graduating class.*fn4 He then attended Northwestern University School of Law, and obtained his Master of Laws degree in 1976. During this same year, he joined the American Medical Association in Chicago, Illinois as an immigration attorney. In 1977 and 1979 respectively, he became licensed to practice law in Illinois and Michigan. In 1979, appellant founded Dobkin & Associates, an immigration law firm. According to appellant, he is a former chairperson of the Immigration Law Section of Oakland County's Michigan Bar Association, an internationally renowned immigration attorney, who has handled over 7,000 cases, and has given lectures concerning immigration law in the U.S., Canada, and England. In 2006 and 2009, appellant published respective immigration law articles in journals from St. Thomas University School of Law in Florida and University of California, Los Angeles School of Law. As further reflected in his resume, appellant retired from active practice to seek a career in academia.

On August 29, 2009, appellant submitted his application materials for the immigration law professor position to Elizabeth Samuels, ("Ms. Samuels"), the Chairperson of the Faculty Appointments Committee ("the Committee").*fn5 On September 1, 2009, Ms. Samuels confirmed that the Committee received the application, and appellant replied several days later. After not receiving further communication, on February 5, 2010, appellant contacted Ms. Samuels via electronic mail, writing:

Since I've not heard from UB [sic] concerning my application for the position in Immigration and Administrative Law, I assume there is no interest. I would like to know who was hired for the position?

Ms. Samuels replied the same day, offering her apologies that appellant was not interviewed, and stated that the successful applicant was hired for the new position. Less than an hour later, appellant wrote:

Thanks for answering me. It's simply amazing how law schools choose newbies like [the successful applicant] and don't even bother to interview candidates with a world of experience. Something is seriously wrong here.

From the 833 applications, only 56 applicants were interviewed, and the Committee identified fourteen candidates for "second-round" interviews. In addition to the successful applicant, the Committee hired two others, who were thirty-eight and forty years old respectively. According to Ms. Samuels' affidavit, U.B.'s criteria was "a combination of academic training and success, publications, judicial clerkships, and teaching experience," in conjunction with a Juris Doctor from a top ten U.S. law school. The Committee was highly impressed with the successful applicant's academic credentials, as she was a Yale University School of Law graduate and she clerked on the federal levels. Moreover, the Committee favored her significant experience and training in clinical teaching in the area of immigrant rights.

According to U.B., appellant was neither interviewed nor hired because he had no prior clinical or law school teaching experience, and his academic credentials did not compare favorably to other applicants. He did not graduate from a prestigious law school, and had neither state nor federal clerkship experience. Although appellant practiced law for countless years, he did not possess the additional qualifications that the Committee desired.

On March 18, 2010, appellant filed a charge of age, national origin, and gender discrimination with the Baltimore Community Relations Commission and the Maryland Commission of Human Relations. Because more than 180 days passed regarding that filing, on November 16, 2010, appellant filed a complaint in the circuit court, alleging that appellee failed to hire him, but instead hired a thirty-two year old woman, who was less experienced and qualified for the position. On January 31, 2011, U.B. filed its answer.

Following discovery, on November 10, 2011, U.B. filed its motion for summary judgment, asserting that appellant (1) failed to submit any evidence that the Committee harbored a discriminatory attitude against applicants over the age of forty; (2) failed to establish that the Committee predicated its decision on the applicants' ages, (3) provided insufficient evidence to establish discriminatory pretext, (4) failed to submit any evidence to dispute that U.B. hired a substantial number of faculty over the age of forty; and (5) failed to identify a policy on statistical evidence that U.B.'s hiring practices had an adverse impact on applicants over the age of forty. On December 6, 2011, appellant filed his opposition to the motion for summary judgment, contending that there were questions of fact regarding whether U.B. discriminated against him based on his age, and whether it had a practice of discriminating against older applicants, which disparately impacted those over the age of forty.

On December 14, 2011, the circuit court granted U.B.'s motion for summary judgment, finding:

. . . The [c]court - it's not the [c]court's decision to decide that practitioner's [sic] are better for clinical teachers than academicians. Maybe they are. But tha's [sic] not the [c]court's decision. And that's the core argument that's being made here. And that's what the core evidence is.

The core evidence is that the University of Baltimore was looking for and ending up hiring somebody who was better described as an academician than a practitioner to teach clinical education. And from Mr. Dobkin's standpoint, particularly since they wanted someone with breadth, that that [sic] was totally wrong. Because they hired somebody who only had experience in one area.

And frankly, the law school didn't care. Because what they were looking at was, [sic] more academic credentials. Those were of high importance to them. Much more important than the practice.

It really, again, just - and I went though [sic] this several times, because frankly - and went through in particular about the law - because the [appellant] was so adamant about his own qualifications, and the superiority of those. And what it is.

And in the end, on the incompetence, Not discrimination, but incompetence of the Appointment Committee. And that really was his focus. And that that [sic] incompetence leads to that. And, again, tha'ts [sic] not my understanding of the law.

So, for all of those reasons, you know, Im [sic] going to grant the Motion for Summary Judgment. And it may be that the appellate court has something to teach me that I'm wrong in.

Thereafter, appellant noted a timely appeal.

STANDARD OF REVIEW

We review an entry of summary judgment de novo to determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Poole v. Coakley & Williams Construction, Inc., 423 Md. 91, 108 (2011). In considering the trial court's grant of a motion for summary judgment, we review the record in the light most favorable to the non-movant. Bednar v. Provident Bank of Maryland, Inc., 402 Md. 532, 542 (2007) (citing Rhoads v. Sommer, 401 Md. 131, 148 (2007)) ("We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party.") (additional citation omitted).

Summary judgment is not proper when there is a genuine dispute of material fact, including disputes over reasonable factual inferences. Poole, 423 Md. at 109 (citing Fenwick Motor Co. v. Fenwick, 258 Md. 134, 136 (1970) (internal quotation omitted) (additional citation omitted). The court's function during a summary judgment hearing is to determine whether a genuine dispute of fact exists, including factual inferences. Charles County Comm'rs v. Johnson, 393 Md. 248, 263 (2006).

"Courts must take special care when considering a motion for summary judgment in an employment discrimination case . . . ." Derrickson v. Circuit City Stores, Inc., 84 F.Supp.2d 679, 684 (D. Md. 2000) (quoting Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (omitted quoted sentence). In such cases, when a party moves for judgment, he or she must present legally sufficient direct or circumstantial evidence to establish that the facts are susceptible to more than one permissible inference. See Williams v. Maryland Dpt. of Human Resources,136 Md. App. 153, 163 (2000). Legally sufficient means that the injured party cannot sustain its burden by "offering a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture . . . ." Malik v. Tommy's Auto Serv., Inc., 199 Md. App. 610, 620 (2011) (citing Myers v. Bright, 327 Md. 395, 399 (1992)) ...


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