JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED.
COSTS TO BE PAID BY APPELLEE.
Appellant: Steven M. Klepper (Louis P. Malick, Kramon &
Graham, PA, Baltimore, MD; Tamika R. Nordstrom, Constancy,
Brooks, Smith & Prophete, LLP, Atlanta, GA) all on the brief.
Appellee: Adam A. Carter (R. Scott Oswald, The Employment Law
Group, PC, Washington, D.C.) all on the brief.
Leahy, Wilner, Alan M. (Retired, Specially Assigned)
Md.App. 481] Graeff, J.
case arises from a lawsuit filed in the Circuit Court for
Montgomery County by Vincent Balderrama, appellee, against
Lockheed Martin Corporation, his former employer, alleging
that Lockheed Martin terminated his employment in retaliation
for claiming that his negative performance evaluation
resulted from discrimination based on national origin.
Although Mr. Balderrama also sued on the ground of
discrimination based on national origin, the circuit court
granted Lockheed Martin's motion for summary judgment on
that claim, finding that there was not legally sufficient
evidence to support it. The sole issue presented to the jury
was the claim that Lockheed Martin fired Mr. Balderrama in
retaliation for making a complaint of discrimination. The
jury found in favor of Mr. Balderrama and awarded him
appeal, Lockheed Martin presents several questions for our
review, which we have rephrased slightly, as follows:
[227 Md.App. 482] 1. Did the circuit court err in finding
that Mr. Balderrama's retaliation claim presented a jury
question and in not granting judgment in favor of Lockheed
2. Did the circuit court abuse its discretion in denying a
new trial after the jury awarded $830,000 in damages?
3. Did the circuit court err or abuse its discretion in
awarding excessive fees and costs?
reasons set forth below, we answer the first question in the
affirmative, holding that Mr. Balderrama did not produce
sufficient evidence to submit the retaliation claim to the
jury. Accordingly, we shall reverse the judgment of the
AND PROCEDURAL BACKGROUND
and Early Years
Balderrama stated in his amended complaint that, at the time
of filing, he was a 58-year-old Hispanic male. He was hired
by Lockheed Martin in 2004 to fill the role of Business
Development Manager. In 2007, Mr. Balderrama transferred to
the Mission Systems and Sensors Integration Division. He was
tasked with, inter alia, " identifying and
qualifying international sales opportunities of MH-60 Seahawk
helicopters for sale to governments of countries in his
portfolio." Mr. Balderrama was a member of " Team
Seahawk," a cooperative enterprise comprised of multiple
teams within multiple organizations, with the unifying goal
of producing and marketing Seahawk helicopters
his first five years with the company, Mr. Balderrama was
considered a " higher performer." In 2009 and 2010,
however, Mr. Balderrama's then supervisor, Ron
Christensen, [227 Md.App. 483] gave him a significantly lower
performance rating than in previous years. For the 2010
evaluation year, Mr. Christensen gave Mr. Balderrama an
overall performance score of 3 out of 5, which corresponds to
" acceptable" performance.
Balderrama's Ratings Continue to Decline Despite Team
January 2011, Doug Laurendeau replaced Mr. Christensen as Mr.
Balderrama's immediate supervisor. Mr. Laurendeau gave
Mr. Balderrama the same " acceptable" score of 3
out of 5 for his performance in 2011.
2012, Mr. Balderrama, acting as " business development
lead," was tasked with selling Seahawk helicopters to
Denmark. That year, Team Seahawk succeeded in selling nine
helicopters to Denmark, a sale of approximately $700 million,
which resulted in approximately $130 million in gross revenue
to Lockheed Martin. Mr. Balderrama's customer
relationships were credited as having a " tangible
impact on the win."  In February 2013, Lockheed Martin
issued an " Independent Lessons Learned" document
that rated positively Team Seahawk's work on the Denmark
the significant Team Seahawk " win," Mr.
Balderrama's supervisors were not satisfied with his
performance during that year, particularly his failure to
follow management direction and his inability or
unwillingness to communicate with his team. Mr. Balderrama
would disparage Mr. Laurendeau's managerial decisions and
" bad-mouth" him in conversations with senior
members of their Navy customer. Mr. Laurendeau believed that
Mr. Balderrama was either unwilling or unable to create a
" political call plan" that would establish
acceptable customer " counterparts," and instead,
he contacted those " counterparts" himself. In some
instances, Mr. Balderrama violated company policy by
contacting senior Navy officials that he was not authorized
to engage. Mr. Laurendeau gave Mr. Balderrama a lower
performance rating [227 Md.App. 484] for 2012, which placed
him in the bottom 10% of employees in his peer group at
to notifying Mr. Balderrama of his evaluation, Mr. Laurendeau
notified his supervisor, George Barton, and Cindy Gadra, a
member of Lockheed Martin's human resources department.
He stated that, although Mr. Balderrama " brings some
significant strengths to the team," Mr. Balderrama had
" not been successful at demonstrating improvement"
in areas of development that had been discussed. Mr.
Laurendeau expected that Mr. Balderrama would be upset with
his performance review, and he proposed a meeting with Mr.
Shultz to bring the issue to his attention so Mr. Schultz
would not be " blindsided" if Mr. Balderrama
reached out to him to challenge his negative
Balderrama's 2012 Performance Review
February 12, 2013, Mr. Laurendeau met with Mr. Balderrama to
discuss his performance review for 2012. Mr. Laurendeau
credited Mr. Balderrama's contribution to the Denmark
win, but he stated " that's not everything."
Mr. Laurendeau explained that Mr. Balderrama had not provided
him with all the expected plans, and he " tended to do
stuff by [him]self" instead of engaging the whole team.
When Mr. Balderrama was asked about his " positioning to
win" strategy, he " tend[ed] to just come up with
anecdotes and not real facts to support [them]."
Balderrama refuted these criticisms, asserting that he gave
Mr. Laurendeau all the requisite plans, and he regularly
updated and fully briefed Mr. Laurendeau. He claimed that the
problem was that Mr. Laurendeau did not believe the briefings
that he received, and he accused Mr. Laurendeau of being
unfair. Mr. Balderrama stated: " I gave you all this
information, and I don't think you're judging me by
the same standard as everybody else."
Md.App. 485] Mr. Laurendeau then reiterated his criticism
that Mr. Balderrama failed to engage his team, and Mr.
Balderrama did not engage executives and allow them to
establish relationships with their counterparts in Denmark,
but rather, he " stifled [management] at every
opportunity to do that." Mr. Balderrama again disputed
these allegations. He stated that, even though the Danes with
whom they were negotiating stated that they did not want
executives " parachuting" into their negotiations,
the Lockheed Martin executives nonetheless had numerous
opportunities to meet with Danish officials.
Laurendeau credited Mr. Balderrama for knowing a lot of
people and " understanding external stakeholders,"
but he was not happy that Mr. Balderrama engaged Danish
politicians by himself when that role should have been
reserved for more senior employees. He also criticized Mr.
Balderrama for failing to " take advantage of the
diverse opinions." He stated that he was
getting feedback from the PMT, the program team, and from
management that you don't listen, that you don't take
in people's advice and you don't listen to what
they're saying in meetings -- you're talking too
much. You're not getting in the different perspective
views of other people. You just have your own agenda and you
pursue it, despite what other people are trying to give their
Balderrama responded that his meeting with Danish politicians
was authorized, and he argued that he had " always taken
in people's opinions," and he was a " team
player," as well as a " team leader."
Laurendeau then told Mr. Balderrama that, " when you add
all these things up together, the total average comes out to
you're in the bottom ten percent of [your] peer
group." Mr. Balderrama responded:
Are you kidding me? I'm in the bottom ten percent? I
mean, we won Denmark. We've been a team player with
everybody. Everybody except for you [Mr. Laurendeau] seems to
think that I did a wonderful job, you know? I just think
you've been -- I've said it before. I think
you're [227 Md.App. 486] prejudiced. I think this whole
thing is -- you've been measuring -- this shows
you've been measuring me by a different yardstick.
Balderrama stated that Mr. Laurendeau was " speaking in
generalities," and he asked for specific examples of
misbehavior. Mr. Laurendeau stated that Mr. Balderrama did
not get executive management or other leadership engaged. Mr.
Laurendeau advised that his review was " a fair and
accurate assessment" of Mr. Balderrama's performance
in 2012. Mr. Balderrama responded:
You've been prejudiced to me. This is -- it's a pure
example again of how you've been measuring me by a
different yardstick. You didn't even look at the facts. .
. . I don't get it. I don't understand it. That's
unfair. You know? I have to do something about this. I
can't let this stand.
Laurendeau asked Mr. Balderrama what he intended to do, and
Mr. Balderrama replied that he did not know, but he would
talk to Dan Schultz. Mr. Laurendeau stated that Mr. Schultz
was " not in the chain," to which Mr. Balderrama
replied that Mr. Schultz knew him, and he would have to talk
to human resources " or something else." Mr.
Laurendeau told Mr. Balderrama that he was " free to
talk to HR," and he referred Mr. Balderrama to Ms.
Balderrama signed his performance review on February 28,
2013, after adding the following comments:
I refute the evaluation of my supervisor and intend to submit
for formal redress and appeal to Human Resources. The
evaluation of my supervisor is a prejudiced assessment that
failed to accurately recount and assess my contributions and
accomplishments. Many of my supervisor's evaluation
comments fail to correlate directly to agreed upon specific
measurements of commitment objectives. Moreover, many of his
comments lack specificity and contain broad generalities that
can be refuted by facts. I question his general comments that
characterize my contributions to strongly imply, if not
overtly state, that my leadership of the Denmark campaign
lacked early and detailed planning [227 Md.App. 487] and was
less than effective. Yet, Denmark was a WIN for MST [Mission
Systems and Training]-a win against a lower priced, very
aggressive competitor in their own " backyard." In
fact, it was the only Maritime Helicopter win for
MST in 2012 and the culmination of a five-year campaign. My
supervisor makes numerous claims of my lack of engaging the
" broader organization" ; yet he has never defined
the " broader organization" . My capture execution
directly engaged the counsel and support of the expanse of LM
to include functional organizations, programs . . . as well
as Team Seahawk teammates from the Navy, Sikorsky and other
U.S. Industry and Danish Industry. That seems to me to be the
" broader organization." My supervisor claims that
I was less than responsive in providing [a
Price/Position-to-Win strategy], offset plans, political
plans, and media plans yet I can provide numerous revisions
of all those plans that had been provided to my supervisor.
My supervisor repeatedly makes claims that I failed to make
plans or enable appropriate relationships to be established
by senior management. This claim once more reveals my
supervisor's continued failure to understand and accept
the cultural Danish attitudes and desires in contact
with politicians and key stakeholders. Moreover it reveals
his failure to acknowledge that senior management and
executives were exposed to Her Majesty, the Queen of Denmark,
on multiple occasions the Danish Ambassador to the U.S. and
his Defense Attaché . . . and they were also
introduced to the majority of the Danish Defense Committee.
These aforementioned factual examples are just a few
counterpoints to inaccuracies or misrepresentations by my
supervisor of my performance and contribution in 2012. A more
detailed reclama will be provided to Human Resource along
with a request for independent review and adjustment upward
of my performance evaluation.
Md.App. 488] On March 1, 2013, Mr. Laurendeau forwarded his
comments to Ms. Gadra in human resources.
Balderrama Appeals His 2012 Performance Evaluation
March 5, 2013, Mr. Balderrama emailed Ms. Gadra, indicating
his desire to file an appeal of his 2012 performance
evaluation. He stated that his " reclama" would
" assert that the evaluation of [his] supervisor [was] a
prejudiced assessment that failed to accurately recount and
assess [his] contributions and accomplishments."
March 15, 2013, Mr. Balderrama emailed a sixteen-page reclama
to Ms. Gadra. In the body of the email, Mr. Balderrama noted
I have thought long and hard on whether to pursue an effort
to seek redress of my supervisor's evaluation of my
performance in 2012. Given the state of our business and
future outlook I feel I cannot let it stand. To do so places
me at [227 Md.App. 489] great risk to my career and future
opportunity in the Corporation.
" reclama," Mr. Balderrama responded to each of Mr.
Laurendeau's criticisms noted in his performance review.
For example, he argued that Mr. Laurendeau's " claim
that [Mr. Balderrama's] lack of inclusion of others'
opinions and collaboration is unsubstantiated. If anything,
his claim is directly related to [their] personal
disagreements on the best way to pursue and win
Denmark." Moreover, he " especially refute[d] [Mr.
Laurendeau's] comment that [their] campaign was 'less
than effective,'" stating: " How much more
effective can you get than by Winning the
pursuit?" He requested review of his evaluation and
sought " to strike this evaluation from [his]
Balderrama made no indication at this time that he was
alleging discrimination on the basis of age, race, ethnicity,
national origin, or other protected class. Mr. Balderrama
later emailed Ms. Gadra, offering to provide her evidence
that he believed would substantiate his complaints.
March 15, 2013, Ms. Gadra began an investigation of Mr.
Balderrama's claims. Based on his appeal, she was not
investigating a complaint of discrimination, but rather, she
was investigating " an appeal to the performance review
system." Ms. Gadra interviewed Mr. Balderrama and four
of his co-workers: George Barton (Mr. Laurendeau's boss);
Jack McCreary; Tom Kane; and Andy Cox.
some comments were positive, several co-workers advised that
Mr. Balderrama was difficult to get along with and caused
frustration. For example, one person stated: Mr. Balderrama
was asked to set up executive calls for a "
capture," [227 Md.App. 490] but he said " no."
This person also stated that Mr. Balderrama was
untrustworthy, noting that Mr. Balderrama gave " bad
information and sometimes made up things, spinning things
rather than providing facts." Other comments included
criticism of Mr. Balderrama's communication and social
skills, including that any communication with Mr. Balderrama
was one way, and Mr. Balderrama told " everyone else
what to do" and did not listen to other people's
concluding her interviews, Ms. Gadra created a document that
contrasted Mr. Balderrama's assessment of his performance
with Mr. Laurendeau's assessment. She followed-up with
Mr. Laurendeau to " get his feedback on where there were
gaps in their assessment[s]." She then summarized her
investigation, formed an assessment of Mr. Balderrama's
appeal, and submitted a report to Lockheed Martin's Equal
Employment Opportunity (" EEO" ) office, which was
" standard practice for every performance rating
appeal." In response to questions listed on the report,
she stated that no protected characteristics were mentioned
and there were no indicators that the complaint involved any
protected characteristics. Ms. Gadra concluded that Mr.
Balderrama's " performance evaluation for 2012 would
stand," which meant that his rating would remain in the
bottom 10% tier.
April 10, 2013, Ms. Gadra spoke with Mr. Balderrama to
discuss the results of her investigation. Ms. Gadra testified
that, during that phone call, Mr. Balderrama reiterated that
the 2012 performance review was a " prejudice[d]
assessment." Ms. Gadra asked him what he meant by "
prejudice," and Mr. Balderrama responded that he felt
" pressured." Mr. Balderrama never mentioned race,
national origin, ethnicity, or any other protected
characteristic. She stated that
[t]he term prejudice can mean many different things. It was
never stated anywhere that Mr. [Balderrama] felt he was
prejudiced against. He stated it was a prejudiced assessment.
In other places he stated it was an unfair assessment, a
distorted assessment. That term seemed to be interchangeable
with those other terms and he went on [227 Md.App. 491] to be
very specific about what he disagreed with in the assessment.
So my focus was on the assessment.
Balderrama agreed that he never explicitly mentioned a
protected characteristic. He stated, however, that he
expected that Ms. Gadra, " as an HR experienced, very
senior person, who she said has gone through a lot of these
things," would understand what prejudice meant from a
Gadra testified that, during her conversation with Mr.
Balderrama, he stated that he would have to continue
appealing because she set him up and put him in " a
precarious position in the event of layoffs." In her
notes from the conversation, Ms. Gadra concluded that Mr.
Balderrama was " not taking responsibility for his
actions," " [i]ssues are others [sic] fault, not
his," and " [i]t's unlikely there will be
performance improvement in 2013 based on this
Balderrama Seeks Further Review, Alleging National Origin ...