Gorham v. Maryland
| Decision Date | 19 July 2018 |
| Docket Number | Civil Case No.: ELH-17-2732 |
| Parties | MICHAEL J. GORHAM, Plaintiff, v. STATE OF MARYLAND, DEPARTMENT OF GENERAL SERVICES Defendant. |
| Court | U.S. District Court — District of Maryland |
In this employment discrimination case, plaintiff Michael J. Gorham filed suit against defendant State of Maryland, Department of General Services ("MDGS" or "Department"). ECF 1. He alleges disparate treatment on the basis of race as well as retaliation, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Id.
Pending before this court is defendant's pre-discovery motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment. ECF 4. The motion is supported by a memorandum of law (ECF 4-1) (collectively, the "Motion") and several exhibits. Plaintiff opposes the Motion (ECF 7), supported by a memorandum (ECF 7-1) (collectively, "Opposition"), and has also submitted exhibits. Defendant did not file a reply.
No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, the Motion will be granted in part and denied in part.
In 2007, MDGS hired plaintiff, an African-American, as a Maintenance Supervisor within the Facilities Operation and Maintenance, Multi-Service Division ("FOM"). ECF 1 ¶¶ 14-15; ECF 4-1 at 2. As a Maintenance Supervisor, plaintiff's responsibilities included reporting to and assisting the Regional Manager in matters of procurement, building maintenance operation, and supervising subordinate employees. ECF 1, ¶ 16. Throughout the course of plaintiff's employment, as positions became available, he "continuously" applied for promotions to become a Regional Manager. Id. ¶ 18.
Barbara Bauman, who is Caucasian, is the Superintendent of the Department. She "has been the selecting official for the Regional Manager positions from 2008 to present." Id. ¶ 19. According to plaintiff, instead of selecting him, MDGS hired several less qualified Caucasian employees to fill Regional Manager positions. Id. ¶¶ 20-21. They included Delbert Stallings, who was promoted from a Maintenance Mechanic in or around 2008, and Nicole Leary, who was promoted in 2016 from the position of Administrative Assistant. Id. ¶ 21. Additionally, the Department hired Mike Ireland in 2011 and Michael Kane in 2013 to serve in the position of Regional Manager. Id.
In the beginning of 2016, Adrian Randall, an African-American, held the Regional Manager position for Region 3 (South Baltimore). Bauman Aff., ECF 4-3 at 1-5, ¶ 5. Randall informed MDGS that he intended to retire, on or about June 30, 2016. Id. at 3, ¶ 12. Accordingly, to fill the impending vacancy, Bauman issued an email announcement notifying "a broad range of employees in FOM who expressed interest in [the] position," including plaintiff, of the opportunity to be considered for the position. ECF 4-3 at 6 (email); see also ECF 4-3 at 2, ¶ 6; Pl.'s Opp., ECF 7-1 at 7. The email provided the job specifications, requested that potential applicants "make sure" they met the minimal job qualifications, and advised that candidates would be required to bring an application or resume to a subsequent interview. ECF 4-3 at 6. According to plaintiff, he inquired why the position was not publicly advertised, but Bauman did not provide any explanation. ECF 1, ¶¶ 23-24.
Nine employees, including plaintiff and two other African-Americans, responded to Bauman's email and were scheduled for interviews. Bauman Aff., ECF 4-3 at 2, ¶ 7. According to the Department, because Bauman's brother, Brian Kramer, applied for the position, "[a] group of panelists were selected to conduct the interview process in order to distance [] Bauman from the selection process." ECF 4-1 at 2 n.1.
The four-person MDGS panel included one African-American employee. Bauman Aff., ECF 4-3, at 2, ¶ 8. During the interviews, the panel asked each candidate fourteen identical questions, and took notes on the responses, and included their positive and negative impressions. Id. ¶¶ 9-10. The panelists scored the candidates' responses and tallied their scores from each response to reach a total. Id. at 3, ¶ 11. A candidate's final rating equaled the sum of each of the panelist's individual scores. Id.
The interview notes for Gorham are docketed at ECF 4-3 at 12-19. The rating sheets are docketed at ECF 4-3 at 20-36. The totals for each candidate for found at ECF 4-3 at 37-38.
In June 2016, the panel selected Kramer to succeed Randall as Regional Manager for South Baltimore, because he was the candidate with the highest combined total score. ECF 4-3 at 3, ¶ 11; ECF 4-3 at 37-38; ECF 1, ¶ 25. According to the Department, plaintiff scored the lowest of all nine applicants. ECF 4-3 at 37-38. However, plaintiff contends that he was more experienced than Kramer, because he had three more years at MDGS and had worked in a supervisory capacity, while Kramer had not. ECF 1, ¶¶ 26-27.
Additionally, plaintiff contends that Caucasian Maintenance Supervisors have a 7:00 a.m. to 3:00 p.m. work schedule, while he, the sole African-American Maintenance Supervisor, has a less favorable work schedule of 8:30 a.m. to 5:00 p.m. Id. ¶ 29.2 Although plaintiff has requested that Bauman "change his schedule to match those of his colleagues," Bauman has repeatedly denied his requests. Id. ¶ 30. Moreover, after plaintiff changed his schedule to match those of the Caucasian Maintenance Supervisors, Bauman reinstituted his original schedule "without adequate justification." Id. ¶¶ 31-32.
On or about July 22, 2016, "because of his non-selection" to replace Randall as Regional Manager of South Baltimore, plaintiff filed a complaint of employment discrimination against MDGS with the Equal Employment Opportunity Commission ("EEOC"). ECF 1-1 at 1. The EEOC informed plaintiff that it "had complied with the law and notified the employer that [he] filed a charge" and instructed plaintiff to sign and return the attached "Charge of Discrimination" ("Charge") form. Id.
Plaintiff signed the Charge on July 30, 2016, alleging discrimination based only on race. Id. at 4. Plaintiff did not allege that he was subject to any other type of discrimination, such as retaliation. See id. (). In his Charge, under the section "DATE(s) DISCRIMINATION TOOK PLACE," plaintiff alleged that he was subject to discrimination only on one date: June 28, 2016. Id. In the section titled "The Particulars Are," plaintiff said, in part, id.: Further, he said, id.: "I believe I have been denied a promotion because of my race, Black . . . ."
As a MDGS employee, plaintiff is subject to biannual performance evaluations from his Regional Manager. Bauman Aff., ECF 4-3, ¶ 13. As the "appointing authority" of Regional Managers, Bauman reviews and countersigns the performance evaluations. Id. ¶ 14. According to plaintiff, prior to Randall's retirement on or about June 30, 2016, Randall completed and signed plaintiff's performance evaluation. ECF 1, ¶ 34. Further, plaintiff contends that, because he filed an EEOC Charge and Bauman believed that Randall had given him an improper score, Bauman reevaluated plaintiff in August 2016 and "inexplicably lowered [his score] to Satisfactory, with a score of 2.41." Id. ¶¶ 33, 35-36, 59. According to plaintiff, his lowered evaluation score was "used against" him by MDGS as a basis not to promote him. ECF 4-3 at 45.
The Department, on the other hand, contends that Bauman countersigned the evaluation on August 23, 2016, when the Department had no knowledge of plaintiff's EEOC Charge. It claims that plaintiff's Charge "was not received by the State of Maryland until August 23, 2016." ECF 4-1 at 3. MDGS relies on the affidavit of Glynis Watford as to the date that the State received notice. See Watford Aff., ECF 4-4.
Since 2007, Watford has been the Statewide EEO Coordinator of the Department of Budget and Management. Id. ¶ 1. As part of her duties, Watford "often receive[s] Notices of Charges of Discrimination when complaints have been filed with the [EEOC] by Maryland State employees. Id. ¶ 4. According to Watford, she received an email notice from the EEOC as to plaintiff's Charge "on or about August 23, 2016." Id. ¶ 5. See also ECF 4-4 at 3 (email notice). The Charge itself was received on August 23, 2016. ECF 4-4 at 2, ¶ 6. Thereafter, she forwarded the EEOC Charge to Robert A. McFarland, Assistant Attorney General, Department of General Services. Id.
Moreover, MDGS contends that Bauman did not reduce Randall's initial evaluation score. ECF 4-1 at 12. Instead, because Randall had improperly entered plaintiff's scores as "mid-term evaluations," Bauman merely corrected the evaluation "by entering the identical scoring information on the end-cycle column and submitted the corrected version to the plaintiff for review and signature." Id. (citing Bauman Aff., ECF 4-3, ¶¶ 12-16) (emphasis in original). According to MDGS, the performance evaluation from Bauman "was identical to that actually done by [] Randall before his retirement . . . ." ECF 4-1 at 12.
Plaintiff alleges that, in violation of Title VII, MDGS discriminated against him on the basis of his race and retaliated against him for filing an EEOC Charge. ECF 1. MDGS seeks dismissal and/or summary judgment as to each of plaintiff's claims. ECF 4.
In particular, the Department contends that this court lacks subject matter jurisdiction to consider the failure to change work schedule claim under Count One and Count Two, and plaintiff's retaliation claim in Count Two, because plaintiff...
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