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Muse-Ariyoh v. Board of Education of Prince George's County

Court of Special Appeals of Maryland

December 21, 2017


         Circuit Court for Prince George's County Case No. CAL15-16583

          Eyler, Deborah S.Friedman, Wilner, Alan M. (Senior Judge, Specially Assigned) JJ.


          Wilner, J.

         In June 2015, appellant, an African-American male born in Nigeria, filed this action in the Circuit Court for Prince George's County against his employer, the Board of Education for that county. He complained that (1) on five occasions, he was denied a promotion on account of his race and national origin in violation of unspecified Articles of the Maryland Declaration of Rights, unspecified sections of Md. Code, Title 20 of the State Government Article, and §§ 2-185 et seq. of the Prince George's County Code; (2) on the last four occasions, the denial also was in retaliation for his having complained to the Federal Equal Employment Opportunity Commission (EEOC) with respect to the first denial; and (3) in further retaliation of his complaint to EEOC, the Board disciplined him for alleged infractions and failed to conduct a timely annual review of his performance in 2014, which affected his eligibility for a salary increase.

         In November 2016, the court, following a hearing, granted the Board's motion for summary judgment based on the court's ultimate conclusion that "there is no evidence that a reasonable jury could find that indeed [appellant] was rejected for the position under circumstances giving rise to an inference of unlawful discrimination" and that "there is no evidence that a reasonable jury could find that indeed the Board did retaliate against the plaintiff." Hence, this appeal, in which appellant contends that the trial court erred in entering summary judgment (1) without considering his pending motion to compel discovery, (2) with respect to his retaliation claim, and (3) where, with respect to four of the denials, the job went to an individual outside of appellant's protected status; i.e., someone other than an African-American male born in Nigeria.

         Before we venture into the facts and the intricacies of the law, we need to deal with a preliminary issue that requires a very brief summary of what will be set forth in greater detail hereafter. Under clear Supreme Court precedent (McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)), to prevail in an employment discrimination case where there is no direct evidence of unlawful discrimination - i.e., where the evidence of discrimination is circumstantial in nature - the employee must first establish a prima facie case of unlawful discrimination. If the employee succeeds in doing that, the burden shifts to the employer to articulate a non-discriminatory basis for the action complained of. If the employer succeeds in that endeavor, the burden shifts back to the employee to establish that the non-discriminatory basis offered by the employer is a pretext and that the act complained of, in fact and in law, was the product of unlawful discrimination.

         The thrust of the Board's motion for summary judgment, as explained in the written memorandum filed in support of it, was that appellant had failed to establish a prima facie case of unlawful discrimination and unlawful retaliation. In a three-sentence paragraph, the Board also claimed that the Board had articulated legitimate non-discriminatory reasons for its actions and, on that basis alone, appellant had failed to produce legally sufficient facts to support his claim of discrimination. In its oral argument on the motion, the Board noted the shifting burdens under McDonnell Douglas but focused its argument on the general proposition that appellant had failed to produce sufficient evidence of discrimination - that he had produced no evidence that the Board had found him more qualified than the candidates it selected.

         Although followed by a brief written Order, the court announced its ruling extemporaneously from the Bench. It found that appellant had shown that he was a member of a protected class (African-American and Nigerian), that he had applied for an open position, and that he was qualified for the position. The court then noted that he "must show in a prima facie case that he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination" and concluded that "there is no evidence that a reasonable jury could find that indeed the plaintiff was rejected for the position under circumstances giving rise to an inference of unlawful discrimination."

         What is not entirely clear from this pronouncement is whether the court was holding that a prima facie case had not been established or that appellant had failed to show that the non-discriminatory reasons articulated by the Board were pretextual. Appellant, almost in passing, raises this question in his brief. In other settings, this might be a problem, but here it is not. As we shall explain, even in the context of the McDonnell Douglas burden shifting protocol, the employee ultimately bears the burden of proving his claim of unlawful discrimination and, if he fails to do so, whether by failing to present a prima facie case initially or failing to show the employer's explanation was a pretext, the result is the same.

         In this case, the Board did articulate non-discriminatory reasons for its actions and produced substantial evidence in support of that articulation, to which appellant responded, and whether we view that evidence as bearing on whether a prima facie case was established or whether pretext was established is largely immaterial. Because of the full record that was made (1, 640 pages of Record Extract) and to avoid the need for further proceedings in the Circuit Court, we shall apply the full three-pronged McDonnell Douglas approach and not cut the analysis off at the prima facie stage.


          Appellant is an architect by training. He first became employed by the Board in 1989 as a Construction Observer in the Board's Department of Planning and Architectural Services. According to appellant, that job entailed his representing the Board on construction projects to ensure, through field observations, that all requirements were being met. From 1992 to 1995, he served as a Planning Assistant and, as such, became involved with the preparation of Capital Improvement Program budgets but still managed contractors' field activities. In 1995, he returned to the position of Construction Observer.

         In 2002, as a result of a structural reorganization of the Board's Building Services Department, appellant was laterally transferred to the Department of Capital Programs as a Facilities Coordinator. In that position, he worked with other officials to determine priorities for renovations, repairs, or preventive maintenance and managed or partially managed several projects.

         First Denial: Director of Capital Programs

         In July 2012, the Board advertised a vacancy for the position of Director of Capital Programs. The Director is "responsible for performing advanced professional architectural advisory service duties in the planning, design, and engineering of new or existing educational facilities." Among other things, the Director acts as liaison between the Board, the County Government, and the Maryland-National Capital Park and Planning Commission with respect to schools, assists in determining sites and the development of standard space requirements, assists in planning and developing facility needs of the school system, and prepares feasibility studies for the replacement of and additions and renovations to existing facilities.

          Along with others, appellant applied for the position. The Board interviewed the two applicants it deemed most qualified. Appellant was not one of them. Ultimately, the Board selected neither of the applicants it had interviewed (nor any that it had not interviewed) and withdrew the posting. Seven months later, in February 2013, it readvertised the vacancy in a new posting. It appears that 24 individuals applied for the position on this second go-around. Appellant was not one of them. Four individuals were interviewed, including Sarah Woodhead, a white American female who, according to the record, had not submitted a formal written application but had inquired about the job, had been invited, apparently by the Board's Department of Human Resources, to be interviewed, and was regarded by the Board as an applicant.

         The interviews were conducted by a panel of five persons, who ranked the applicants based on nine initial interview questions and six follow-up questions. Ms. Woodhead, who had 27 years of professional architectural experience in public policy, planning, and construction management, with a specialty in education infrastructure, was given the highest ranking. She received a composite score of 219, as compared with scores of 126, 157, and 159 for the other three. The interview notes of the panel members show as her strengths:

• "Thorough experience and knowledge of all aspects of school design and construction, including State requirements and control of costs,
• VERY knowledgeable of the work that needs to be done and has experiences that are connected to the job and expectations,
• Really strong sense of how capital projects/construction process works,
• In-depth knowledge of local school system CIP [Capital Improvement Program] world of work,
• Quiet strength of leadership,
• Embraces teamwork and empowerment,
• Really good communicator."

          Unlike the other applicants, each of whom had identified weaknesses (and fewer strengths), no weaknesses were identified for Ms. Woodhead, and she was appointed. In October 2013, appellant filed a complaint with EEOC alleging that he was denied the appointment as a result of his race and national origin. That appeared to be based on (1) his belief that Ms. Woodhead was less qualified than he because she had no experience with Prince George's County building codes, standards, and regulations or with local vendors or school officials, and (2) the fact that she had not applied for the job. When an attempt at mediation failed, his complaint was transferred to the Maryland Commission on Civil Rights (MCCR). MCCR never adjudicated the matter but authorized the filing of this action.

         Second Denial: Facilities Supervisor - Maintenance

         In April 2014, the Board advertised a vacancy for the position of Facilities Supervisor - Maintenance. Under the direction of the Director of Building Services, that person assists, coordinates, and supervises staff responsible for the repair and physical condition of school facilities, facility management, maintenance, and construction/renovation work. Five persons, including appellant, were interviewed for the position by a five-member panel, including Ms. Woodhead.

         Based on answers to interview questions, appellant received the lowest composite score of 109. The others received scores of 123, 135, 144, and 160, respectively. The panel regarded appellant's strengths as limited to his experience with the county school system and the fact that he was a licensed architect but identified as weaknesses unspecific responses to the interview questions, that his work had been project-focused rather than management oriented, that he was not "solution oriented, " and a lack of management skills. In deposition testimony, Ms. Woodhead stated that appellant's responses were "nonspecific and rambling."

         The two top-ranked applicants were invited for second-level interviews, and one of them, Keith Wharton, whom appellant describes simply as "American, " but more particularly is an African-American, got the job. Despite the fact that Mr. Wharton had 25 years of direct experience controlling, directing, and managing facilities maintenance departments and was regarded by the interviewing panel as "technically knowledgeable, " appellant complains that Mr. Wharton was not qualified for the job because he had no knowledge of Board projects and no experience with Prince George's County codes, standards, or vendors.

         Third Denial: Architectural Project Manager

         A year later, in April 2015, the Board advertised a vacancy for the position of Architectural Project Manager. The duties of that position were to perform advance design work and construction administration, direct drafting activities for assigned Capital Improvement Program projects, and review the work of outside consultants. Appellant and four other applicants were interviewed by a four-member panel, including Ms. Woodhead. Of the five applicants, appellant ...

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