Magee v. DANSOURCES, 2571

CourtCourt of Special Appeals of Maryland
Writing for the CourtADKINS.
Citation769 A.2d 231,137 Md. App. 527
Docket NumberNo. 2571,2571
Decision Date28 March 2001

769 A.2d 231
137 Md.
App. 527

Anna C. MAGEE,

No. 2571, Sept. Term, 1999.

Court of Special Appeals of Maryland.

March 28, 2001.

769 A.2d 234
Laurence S. Kaye (Glenn R. Bergmann and Laurence S. Kaye & Associates, P.C., on the brief), Rockville, for appellant

Mindy G. Farber (R. Douglas Taylor, Jr., and Jacobs, Jacobs & Farber, LLC, on the brief), Rockville, for appellees.

Argued before SONNER, ADKINS, and WILLIAM W. WENNER (Retired, Specially Assigned) JJ.

769 A.2d 232

769 A.2d 233

We must decide whether summary judgment was appropriate in this employment termination case alleging hostile environment, quid pro quo, and retaliatory sexual

769 A.2d 235
harassment. Anna C. Magee,1 appellant, appeals from summary judgments entered in favor of her former employer DanSources Technical Services, Inc. ("DTSI"), appellee, on all three sexual harassment counts of her complaint, as well as counts alleging abusive discharge and violation of Maryland's Wage Payment and Collection Law.2 We find that there was ample evidence to create a dispute regarding the central question in this case—why Magee was fired. In doing so, we reject DTSI's argument that the so-called "same actor inference" overcame this evidence on summary judgment, because "where the same person hires and fires an employee it is not `so probable' that the discharge was not motivated by discrimination that we ought to assume it is so in every case." Molesworth v. Brandon, 341 Md. 621, 644, 672 A.2d 608 (1996). We shall reverse the judgments on all five counts of the complaint.


Daniel Fahey hired Magee to become DTSI's first Human Resources Director, but her at-will employment lasted less than nine months. Fahey claims that he fired Magee because her excessive absenteeism made her work performance unsatisfactory. Magee claims that she was the victim of sexual harassment and retaliation.

The parties presented conflicting stories about what happened in the DTSI workplace, and why Magee was fired. They litigated two separate motions for summary judgment, which were heard by two different judges, with opposite outcomes. In granting the second motion for summary judgment, the court considered deposition testimony by Magee and Fahey, affidavits from Magee and Fahey, and Magee's answers to interrogatories. We must review the same evidence, and the inferences from that evidence, in the light most favorable to Magee, as the party opposing summary judgment. See Heat & Power Corp. v. Air Prods. & Chemicals, Inc., 320 Md. 584, 591, 578 A.2d 1202 (1990).

Magee's Story

Magee retired from a position in human resources with Montgomery County on December 31, 1996. Her family had a long relationship with Fahey's family. Magee claims that in early January 1997, Fahey contacted Magee regarding the possibility of Magee coming to work for DTSI. DTSI specializes in recruiting and placing contract workers in the high-tech industry. Many of these workers are foreign nationals.

Magee agreed to meet with Fahey. At that meeting, Fahey advised Magee that he wished to create a new human resources position, and discussed hiring her in either a consulting capacity or as a permanent member of his staff. Fahey did not mention any recruitment or placement responsibilities.

Fahey hired Magee. Magee recalls that she began working in late January or early February 1997, reporting directly to Fahey. She alleges that she had advised Fahey that she needed to complete physical therapy for a back injury, and therefore would work part-time before becoming full-time. Her responsibilities included managing personnel issues relating

769 A.2d 236
to employee benefits, updating files for compliance with federal and state laws, and initiating and monitoring appropriate sponsorship for foreign national employees.

Magee became the only full-time female on site at DTSI. In addition to Fahey, DTSI had several male employees who recruited and placed workers for DTSI's clients. Recruiters earned commissions for each successful placement.

Magee soon encountered a number of problems at DTSI. She alleges that in her capacity as human resources director, she brought to Fahey's attention a number of irregularities. She contends that Fahey either created, ignored, or dismissed these matters, and that he responded negatively to her refusal to "go along" with what she believed were inappropriate or illegal activities. Magee specifically complained about the following work-related disputes with Fahey.

• Immigration Documentation. Magee was responsible for maintaining right-to-work documentation for immigrant workers placed by DTSI. Shortly after she began work, she discovered that DTSI had a practice of not properly verifying and maintaining such records. After reviewing all of DTSI's files, Magee advised Fahey that DTSI must bring itself into compliance with federal immigration and employment laws. Fahey responded that Magee was "going overboard" and became openly resentful of her efforts to "keep the company honest." He pressured Magee to place foreign nationals who were not authorized to work. When Magee told Fahey she would not participate in any illegal activity, he put those workers without proper documentation to work, over Magee's objection.

• Overtime Payroll. Magee believed that some DTSI employees who were working for a particular client qualified for overtime. She advised Fahey about her concern that the failure to pay them overtime violated federal and state laws. She did not file a complaint under the Fair Labor Standards Act ("FLSA"). Fahey disagreed with Magee, and became openly upset about Magee's insistence that the company pay overtime. But eventually DTSI did make retroactive payments to these employees.

• Health Insurance. Magee was responsible for managing health benefit packages for DTSI employees. She completed routine claim forms for submission to DTSI's health insurance carrier. Fahey instructed Magee to submit a form stating that Nathaniel Brous, a DTSI employee's son with a known heart condition, was an employee entitled to coverage under DTSI's health insurance. Magee objected because the son was not an employee. She refused to submit a claim on his behalf, and told Fahey that doing so would violate federal health fraud laws. Fahey demanded that she give him the paperwork.

Magee also considered the workplace at DTSI discriminatory, and repeatedly complained to Fahey that he was promoting and tolerating a hostile environment. She claims that "[f]rom almost the first time I began to work there, I complained about the discriminatory activity," and that she continued to complain about it "all the time." In support of her hostile environment charges, Magee offered a long list describing specific incidents of sexual harassment. Among the more egregious instances that Magee reported are the following:

769 A.2d 237
• "Dan [Fahey] would repeatedly pin me against my chair while he would show me things on the computer, and then he would run his knee up and down my leg."

• Fahey took a photograph of a painting of a nude woman by a famous painter. "It had been on the wall across from where my desk was. He moved it over to just above my desk, so that when I looked up, I was staring at her buttocks. I told him not to put it there because I did not want to look at it. He refused to move it. Additionally, he would pat the ... buttocks in front of me and look at me while he did it. Finally, I moved my desk so I did not have to be right under the painting."

"On one occasion, [Fahey] moved to adjust artwork over my desk, which did not need any adjusting. He reached across me, and bumped my breast. He then said in a disingenuous overreaction, `Oh, I'm sorry, sorry sorry sorry sorry sorry sorry sorry sorry sorry. Don't take that wrong.' Then he stopped at the door on the way out, and said to me, referring to my breasts, `But they're real solid.'"

• Fahey permitted one of the male recruiters to display a calendar featuring graphic photographs of nude women. Magee advised Fahey that the calendar was inappropriate and that it should be removed. Fahey "made it seem as if I was being unreasonable in requesting that it be removed." He allowed the calendar to remain on display until he moved the male recruiter into his own separate office.

• During a staff meeting, one of the male recruiters, under the guise of asking Magee for advice as the human resources director, asked her what he should do "when he turned on the computer and found a picture of two nude women defecating on a nude man." Another male recruiter asked what the site address was. Fahey then said that he had several he could give the recruiter. Magee "was pressed for an answer until [she] told them not to turn on the computer if they had a problem."

• Fahey commonly used gender-based comments regarding workplace matters. He repeatedly referred to women as "bitches." When Fahey terminated a female worker placed with a client, Magee commented that the woman did not have "the balls" to do the job. Fahey corrected her by noting that, actually, "she did not have the `ovaries' to do the job." In addition, Fahey would say Magee was "ovulating" when she was not in a good mood. When Magee made her first hire, Fahey announced to a client and then to the entire staff that she had "lost [her] virginity."

• Fahey and the other men in the office directed dirty jokes to Magee. "Every day one of the men would confront me with a poorly constructed blatant sexual joke and then I was asked if I was offended because I was blushing. Weekly staff meetings [included] at least one off color joke or remark."

• Magee was eventually required to recruit. But the male recruiters had first access to the latest resumes coming in from the fax machine located near them.

"I explained it was not my mission to shake up the status quo but I was obligated to point out...

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