Dept. of Health v. Best
This text of Dept. of Health v. Best (Dept. of Health v. Best) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Maryland Department of Health v. Suzanne Best, No. 1279, September Term 2023. Opinion by Ripken, J. SUFFICIENCY OF THE EVIDENCE – RETALIATION – PROTECTED OPPOSITIONAL ACTIVITY To support a claim of retaliation under Title VII of the Civil Rights Act of 1964 or Title 20 of the Maryland State Government Article based on protected oppositional activity, evidence must demonstrate that the protected oppositional activity was made on the basis of race or some other protected status or class. Where there was no evidence that a complainant’s oppositional activity was based on race, or a protected class or status, there was insufficient evidence upon which a jury could conclude that the oppositional activity was protected under Title VII or Title 20. SUFFICIENCY OF THE EVIDENCE – RETALIATION – PROTECTED OPPOSITIONAL ACTIVITY Protected oppositional activity can be proven if a plaintiff can show that the employer understood, based on the employee’s actions or the employer’s response, that the employee was complaining of discriminatory conduct. Where there was no evidence that the employer had knowledge that the employee’s complaint was based on race, there was insufficient evidence of protected oppositional activity. SUFFICIENCY OF THE EVIDENCE – RETALIATION – PROTECTED OPPOSITIONAL ACTIVITY Protected oppositional activity can be proven if a plaintiff can show that the employer should have understood, based on the employer’s or the employee’s conduct, that the employee was complaining of discriminatory conduct. Where there was no evidence that the employer should have understood the employee’s complaint to be based on race, there was insufficient evidence of protected oppositional activity. SUFFICIENCY OF THE EVIDENCE – DISCRIMINATION – ADVERSE EMPLOYMENT ACTION To bring a claim for discrimination using circumstantial evidence, a plaintiff must prove: (1) membership in a protected class; (2) satisfactory job performance; (3) an adverse employment action; and (4) different treatment from similarly situated employees outside the protected class. Under Muldrow v. City of St. Louis, Missouri, a plaintiff need only show “some harm” to demonstrate an adverse employment action. A transfer or reassignment can therefore form the basis for an adverse employment action. Evidence was legally sufficient to demonstrate that an involuntary transfer was an adverse employment action where it caused some harm by changing the terms and conditions of employment. Circuit Court for Baltimore County Case No. C-03-CV-20-004575
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 1279
September Term, 2023
______________________________________
MARYLAND DEPARTMENT OF HEALTH
v.
SUZANNE BEST
Zic, Ripken, Getty, Joseph M. (Senior Judge, Specially Assigned),
JJ. ______________________________________
Opinion by Ripken, J. ______________________________________
Filed: December 30, 2024
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2024.12.30 14:55:40 -05'00' Gregory Hilton, Clerk Suzanne Best (“Best”) sued her employer, the Maryland Department of Health
(“MDH”) in the Circuit Court for Baltimore County, claiming retaliation and race-based
discrimination under both Title VII of the Civil Rights Act of 1964 (“Title VII”), and Title
20 of the Maryland State Government Article (“Title 20”). Best alleged that she was
retaliated and racially discriminated against after she made an anonymous complaint to
MDH’s Office of the Inspector General (“OIG”) about MDH’s unfair hiring practices. Best
asserted that the retaliation and race-based discrimination occurred when MDH employees
involuntarily transferred her from Clifton T. Perkins Hospital Home (“Perkins”) to Spring
Grove Hospital Center (“Spring Grove”).
A trial was held on the merits. After MDH moved for judgment as a matter of law
(“JMOL”), and subsequently made two renewed motions for JMOL (“RJMOL”), the
circuit court denied MDH’s requests, and the case was submitted to the jury. The jury found
MDH liable to Best for retaliation and race-based discrimination and awarded Best
damages. MDH filed a motion for judgment notwithstanding the verdict (“JNOV”) or, in
the alternative, for a new trial, which the circuit court denied in August of 2023. MDH filed
this timely appeal.
ISSUES PRESENTED FOR REVIEW
MDH presented the following issues for our review: 1
1 Rephrased from: 1. Was the evidence insufficient to support a finding that the Department’s reassignment of Ms. Best constituted unlawful retaliation for her complaint about the Department’s hiring practices, where the complaint did not relate to prohibited discrimination, the reassignment was not a I. Whether there was legally sufficient evidence, such that a reasonable juror could conclude that MDH’s involuntary transfer of Best was a retaliatory action.
II. Whether there was legally sufficient evidence, such that a reasonable juror could conclude that MDH’s involuntary transfer of Best constituted race- based discrimination.
For the following reasons, we shall reverse in part and affirm in part.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts were elicited at trial.
A. People and Facilities Relevant to this Lawsuit
In September of 2016, Best, a White woman, began working at Perkins as an
Assistant Director of Nursing (“ADON”). Perkins differs from the other hospitals in the
Maryland psychiatric hospital system, as it is the only maximum security forensic
psychiatric hospital in the State. When Best started her ADON role at Perkins, the CEO
was John Robison (“Robison”).
Prior to working at Perkins, Robison worked at Levindale Hebrew Geriatric Center
(“Levindale”). Levindale is a geriatric care facility that typically employs nursing staff
from the private sector; because of the difference in services provided between Perkins and
Levindale, the two facilities employ nurses who frequently have different qualifications,
demotion, and the reassignment took place more than a year and half after the complaint?
2. Was the evidence insufficient to support a finding that the Department’s reassignment of Ms. Best constituted unlawful race discrimination, where the reassignment was not a demotion, no similarly situated employee was treated more favorably than Ms. Best, and any basis for a finding of discrimination was speculative? 2 dependent upon the facility and the employer. Robison served as CEO of Perkins until the
summer of 2017, when he was promoted to Chief of Hospital Administration for MDH, a
position in which Robison oversaw all state-funded hospitals in Maryland. Robison left
MDH in March of 2021.
Michelle Preston (“Preston”) began working for MDH in late 2016. She had
previously worked at Levindale. Preston was hired as Best’s supervisor with the title of
Director of Nursing (“DON”). This meant that the chain of command went from Best, to
Preston, to Robison.
After Preston began working at Perkins, she made comments that Perkins needed
higher quality employees who had worked in the private sector and indicated that she
wanted to bring over nurses from Levindale. Realizing that Preston was new to government
work, Best and her coworker Tammy Bailey (“Bailey”), an African American 2 woman and
the only other ADON at Perkins, explained the application and hiring process at Perkins.
After Best and Bailey shared this information with Preston, Preston told Best that there
Free access — add to your briefcase to read the full text and ask questions with AI
Maryland Department of Health v. Suzanne Best, No. 1279, September Term 2023. Opinion by Ripken, J. SUFFICIENCY OF THE EVIDENCE – RETALIATION – PROTECTED OPPOSITIONAL ACTIVITY To support a claim of retaliation under Title VII of the Civil Rights Act of 1964 or Title 20 of the Maryland State Government Article based on protected oppositional activity, evidence must demonstrate that the protected oppositional activity was made on the basis of race or some other protected status or class. Where there was no evidence that a complainant’s oppositional activity was based on race, or a protected class or status, there was insufficient evidence upon which a jury could conclude that the oppositional activity was protected under Title VII or Title 20. SUFFICIENCY OF THE EVIDENCE – RETALIATION – PROTECTED OPPOSITIONAL ACTIVITY Protected oppositional activity can be proven if a plaintiff can show that the employer understood, based on the employee’s actions or the employer’s response, that the employee was complaining of discriminatory conduct. Where there was no evidence that the employer had knowledge that the employee’s complaint was based on race, there was insufficient evidence of protected oppositional activity. SUFFICIENCY OF THE EVIDENCE – RETALIATION – PROTECTED OPPOSITIONAL ACTIVITY Protected oppositional activity can be proven if a plaintiff can show that the employer should have understood, based on the employer’s or the employee’s conduct, that the employee was complaining of discriminatory conduct. Where there was no evidence that the employer should have understood the employee’s complaint to be based on race, there was insufficient evidence of protected oppositional activity. SUFFICIENCY OF THE EVIDENCE – DISCRIMINATION – ADVERSE EMPLOYMENT ACTION To bring a claim for discrimination using circumstantial evidence, a plaintiff must prove: (1) membership in a protected class; (2) satisfactory job performance; (3) an adverse employment action; and (4) different treatment from similarly situated employees outside the protected class. Under Muldrow v. City of St. Louis, Missouri, a plaintiff need only show “some harm” to demonstrate an adverse employment action. A transfer or reassignment can therefore form the basis for an adverse employment action. Evidence was legally sufficient to demonstrate that an involuntary transfer was an adverse employment action where it caused some harm by changing the terms and conditions of employment. Circuit Court for Baltimore County Case No. C-03-CV-20-004575
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 1279
September Term, 2023
______________________________________
MARYLAND DEPARTMENT OF HEALTH
v.
SUZANNE BEST
Zic, Ripken, Getty, Joseph M. (Senior Judge, Specially Assigned),
JJ. ______________________________________
Opinion by Ripken, J. ______________________________________
Filed: December 30, 2024
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2024.12.30 14:55:40 -05'00' Gregory Hilton, Clerk Suzanne Best (“Best”) sued her employer, the Maryland Department of Health
(“MDH”) in the Circuit Court for Baltimore County, claiming retaliation and race-based
discrimination under both Title VII of the Civil Rights Act of 1964 (“Title VII”), and Title
20 of the Maryland State Government Article (“Title 20”). Best alleged that she was
retaliated and racially discriminated against after she made an anonymous complaint to
MDH’s Office of the Inspector General (“OIG”) about MDH’s unfair hiring practices. Best
asserted that the retaliation and race-based discrimination occurred when MDH employees
involuntarily transferred her from Clifton T. Perkins Hospital Home (“Perkins”) to Spring
Grove Hospital Center (“Spring Grove”).
A trial was held on the merits. After MDH moved for judgment as a matter of law
(“JMOL”), and subsequently made two renewed motions for JMOL (“RJMOL”), the
circuit court denied MDH’s requests, and the case was submitted to the jury. The jury found
MDH liable to Best for retaliation and race-based discrimination and awarded Best
damages. MDH filed a motion for judgment notwithstanding the verdict (“JNOV”) or, in
the alternative, for a new trial, which the circuit court denied in August of 2023. MDH filed
this timely appeal.
ISSUES PRESENTED FOR REVIEW
MDH presented the following issues for our review: 1
1 Rephrased from: 1. Was the evidence insufficient to support a finding that the Department’s reassignment of Ms. Best constituted unlawful retaliation for her complaint about the Department’s hiring practices, where the complaint did not relate to prohibited discrimination, the reassignment was not a I. Whether there was legally sufficient evidence, such that a reasonable juror could conclude that MDH’s involuntary transfer of Best was a retaliatory action.
II. Whether there was legally sufficient evidence, such that a reasonable juror could conclude that MDH’s involuntary transfer of Best constituted race- based discrimination.
For the following reasons, we shall reverse in part and affirm in part.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts were elicited at trial.
A. People and Facilities Relevant to this Lawsuit
In September of 2016, Best, a White woman, began working at Perkins as an
Assistant Director of Nursing (“ADON”). Perkins differs from the other hospitals in the
Maryland psychiatric hospital system, as it is the only maximum security forensic
psychiatric hospital in the State. When Best started her ADON role at Perkins, the CEO
was John Robison (“Robison”).
Prior to working at Perkins, Robison worked at Levindale Hebrew Geriatric Center
(“Levindale”). Levindale is a geriatric care facility that typically employs nursing staff
from the private sector; because of the difference in services provided between Perkins and
Levindale, the two facilities employ nurses who frequently have different qualifications,
demotion, and the reassignment took place more than a year and half after the complaint?
2. Was the evidence insufficient to support a finding that the Department’s reassignment of Ms. Best constituted unlawful race discrimination, where the reassignment was not a demotion, no similarly situated employee was treated more favorably than Ms. Best, and any basis for a finding of discrimination was speculative? 2 dependent upon the facility and the employer. Robison served as CEO of Perkins until the
summer of 2017, when he was promoted to Chief of Hospital Administration for MDH, a
position in which Robison oversaw all state-funded hospitals in Maryland. Robison left
MDH in March of 2021.
Michelle Preston (“Preston”) began working for MDH in late 2016. She had
previously worked at Levindale. Preston was hired as Best’s supervisor with the title of
Director of Nursing (“DON”). This meant that the chain of command went from Best, to
Preston, to Robison.
After Preston began working at Perkins, she made comments that Perkins needed
higher quality employees who had worked in the private sector and indicated that she
wanted to bring over nurses from Levindale. Realizing that Preston was new to government
work, Best and her coworker Tammy Bailey (“Bailey”), an African American 2 woman and
the only other ADON at Perkins, explained the application and hiring process at Perkins.
After Best and Bailey shared this information with Preston, Preston told Best that there
were three people she knew at Levindale who would be interviewing for positions at
Perkins, all of whom were described as African American or Black women born in Nigeria.
B. Conflicts Begin between Best and Preston
Upon learning of these three potential new hires, Best immediately raised concerns
with Preston. Best expressed these concerns after learning that the potential new hires’
experience was primarily with patients who have chronic medical problems and cognitive
2 To be as respectful as possible, where a witness or party has provided language describing their own race, we have attempted to use the language that person provided. 3 impairment, particularly related to aging, as opposed to treating people with severe mental
health diagnoses, many of whom have committed serious crimes. Best voiced concerns that
the candidates lacked any forensic psychiatric nursing experience, particularly in a
maximum-security facility, experience that was essential for the type of care required by
Perkins’ patients.
Despite having previously sat on interview panels, after noting her concerns to
Preston, which was the proper reporting procedure, Best was not invited to the interview
panels of any of the three candidates. Best renewed her concerns regarding the three
candidates’ lack of essential experience. Preston replied that all three of the candidates
were going to be hired. Soon after this conversation, Best also learned that the three new
hires were going to be paid more than the other nursing staff at Perkins. When Best inquired
about this, Preston replied that she was advocating for the new hires to receive higher pay
because they were used to getting higher pay at Levindale as those jobs were in the private
sector, and that in order to get the three candidates to come to Perkins, they would need to
be paid at a higher rate. After Best’s conversation with Preston, both she and Bailey were
required to attend diversity and cultural sensitivity training.
C. Best’s OIG Complaint: Tensions Rise between Best and Robison
In early 2017, Best made an anonymous complaint to the MDH’s OIG via a
telephone call concerning what Best suspected were illegal hiring practices by Robison and
Preston. Best’s OIG complaint was on the same grounds as her original complaint to
Preston: that the new employees from Levindale were being paid more than nurses
presently employed at Perkins and that they lacked the high-level expertise needed by
4 psychiatric nurses working in a maximum-security facility. In response to Best’s
complaint, a representative from the OIG visited Perkins and conducted an audit of
Perkins’ hiring practices in the spring of 2017. Best testified at trial that following the OIG
audit, she understood that Preston and Robison were to stop hiring people from Levindale.
On April 24, 2017, less than one month after the OIG audit, Best was required to
attend a meeting with Robison. Upon Best’s arrival, Robison was seated at a table with
Jazmine Rich (“Rich”), the Director of Human Resources (“HR”) for Perkins. Robison
informed Best that the purpose of the meeting was that he believed Best was “in over her
head,” that Best was not a good fit for Perkins, and that his goal and plan was to fire Best.
Robison then told Best that after he and the Maryland Secretary of Health signed a letter
terminating Best, Robison learned that he could not terminate her because she was not an
‘at-will’ employee. As such, Best could only be terminated ‘for cause’ through progressive
discipline. Robison then told Best that he was going to terminate her through progressive
discipline. Best inquired of Robison at the conclusion of the meeting if he could specifically
identify his concerns in writing, which he did not do. Until this point, Best and Robison
had a positive relationship. Bailey also had an identical meeting with Robison and Rich
and was informed of the same intention regarding her.
Prior to this meeting, Preston, Best’s supervisor had never discussed any grounds
for discipline nor Robison’s alleged concerns with Best’s job performance. Best had never
received a write-up, disciplinary measure, or even had a discussion with Preston or Robison
about job performance concerns; she had received, at a minimum, satisfactory ratings on
her evaluations. After the April 2017 meeting, Robison avoided interacting with Best.
5 Robison testified that he was instructed by the Deputy Secretary of Behavioral Health
Administration to have no further contact with Best.
In the summer of 2017, Robison was promoted to Chief of Hospital Administration
overseeing all MDH Psychiatric Hospitals. In this new role, Robison supervised all state
hospital CEOs and oversaw reassignments between the facilities. 3 Preston left Perkins
shortly thereafter for a position at Spring Grove. Chris Irwin (“Irwin”) took Robison’s
place as CEO of Perkins. 4 In Preston’s vacancy, under the direction of Irwin, Best filled
Preston’s position; she was selected to be the acting DON. Notably, Best did not want this
role because she felt like “there was a target on her back”; the position was ‘at-will,’ so she
could be terminated without cause. From November 2017 through December 2018, the
record demonstrates that the nursing leadership at Perkins was experiencing internal
conflict. Irwin held meetings with Best, Preston, Bailey, Rich, Fogan, and other nursing
staff members to attempt to address the issues.
D. Best’s Reassignment
In December of 2018, Robison began emailing with Fogan and Dwain Shaw
(“Shaw”), 5 the CEO of Spring Grove about reassigning Best from Perkins to Spring Grove.
3 In September of 2018, Robison, along with other CEOs of MDH facilities, received a letter from the Secretary of the Maryland Department of Health delegating CEOs of all Maryland State hospitals, and Robison with appointing authority. This authority was renewed in October of 2019. The appointing authority gave Robison, Shaw, Irwin, and the other named officials the power to effectuate transfers between the facilities, and stipulated the processes that the officials must follow prior to imposing any disciplinary action. 4 Irwin served in this role until he was replaced by Marianne Fogan (“Fogan”). 5 Shaw was MDH’s designated government representative at trial. 6 Robison proposed exchanging Best with an ADON from Spring Grove, Adesina Abimbola
(“Abimbola”), with an effective date of January 2, 2019. Both Fogan and Shaw were in
favor of the exchange of Best for Abimbola. On January 10, 2019, Robison emailed Fogan
and Shaw again, altering the employee exchange to instead include Best for Evangeline
Okechukwu (“Okechukwu”).
On January 11, 2019, the exchange had yet to occur; Best was called into Fogan’s
office, where she met with Fogan and Rich. Fogan handed Best a memorandum signed by
Robison, informing her that she was given a “temporary re-assignment” 6 to Spring Grove,
effective Monday, January 28, 2019. Best’s receipt of this signed memorandum was her
first contact with Robison since April of 2017. When Best asked Fogan why she was being
involuntarily transferred, the only answer that Fogan could provide was “shared services.” 7
No information was shared with Best on how long the involuntary transfer would last, or
what was required of Best to go back to being an ADON at Perkins, despite her repeated
inquiries. There was no mention of any performance issue as justification for the
involuntary transfer, and Best had not been progressively disciplined as Robison previously
intimated.
6 MDH asserts that this was a temporary reassignment. Best asserts that this was an involuntary transfer. For the sake of consistency and viewing the evidence in the light most favorable to Best, as directed by the standard of review, we will use the term “involuntary transfer.” See Jacobs v. Flynn, 131 Md. App. 342, 353 (2000). 7 At that time on the organizational chart, clinical services were not encompassed under shared services, but rather, departments like information technology, HR, maintenance, and hospital police.
7 Best did not want to work at Spring Grove because in her view, the employees there
were “less competent”; Spring Grove is a very old and not well-maintained facility; and
positions at Spring Grove held less prestige than positions at Perkins. Robison approved
the reassignment pursuant to his appointing authority.
Best filed an internal grievance regarding her involuntary transfer in August of
2019. Concurrently, Best filed two claims with the Equal Employment Opportunity
Commission (“EEOC”) complaining of acts of race-based discrimination and retaliation. 8
In October of 2020, the EEOC issued a notice informing Best of her right to sue MDH
related to the two EEOC charges. In March of 2023, Best returned to Perkins as an ADON. 9
Rather than be transferred back, Best had to reapply via the State website, and ultimately
was required to interview again.
E. Procedural Posture
In December of 2020, Best filed a lawsuit against MDH, Robison, Fogan, and Shaw.
In her complaint, which contained six counts, Best alleged that Robison had engineered
her involuntary transfer from Perkins to Spring Grove after he tried to terminate her in
April 2017. At the close of discovery, MDH moved for summary judgment. The circuit
court partially granted the motion, dismissing the three individual defendants, and all but
8 Resulting from a motion in limine filed by Best, the circuit court had issued a prior order, that any evidence about whether there was a legal assessment by the EEOC was prohibited from being introduced at trial. 9 Best was only able to return to Perkins once Bailey retired, as this created a vacancy at Perkins. 8 two of the claims. The only claims that remained for trial were Best’s claims of retaliation
and race-based discrimination under Title VII and Title 20.
The case was tried without distinction between Title VII and Title 20. The jury was
asked to decide (1) whether MDH retaliated against Best when she was involuntarily
transferred from Perkins to Spring Grove; and (2) whether MDH discriminated against Best
on the basis of race when she was involuntarily transferred from Perkins to Spring Grove.
A trial was held in June of 2023. At the close of Best’s case in chief, MDH moved
for JMOL. MDH argued that the evidence was insufficient to generate a jury question on
either the retaliation or race-based discrimination claims. The circuit court reserved ruling
on MDH’s motion, directing MDH to present its case. At the close of its presentation of
evidence, MDH moved for RJMOL. The circuit court heard arguments from both sides,
and then denied MDH’s motion. 10 The case was submitted to the jury. The jury found MDH
liable to Best on both the retaliation claim and the race-based discrimination claim. The
jury awarded Best $300,000 in damages—$288,000 for emotional distress and $12,000 for
medical expenses. The circuit court entered judgment for Best in June of 2023.
MDH moved for JNOV, or in the alternative, for a new trial. In August of 2023, the
circuit court denied MDH’s motion. MDH noted this timely appeal of the denial of
10 After MDH moved for RJMOL, Best testified as a rebuttal witness. After Best’s rebuttal testimony, MDH moved for RJMOL again to preserve its motion.
9 JNOV. 11 We will provide and incorporate additional facts as they become relevant to the
resolution of the questions presented.
STANDARD OF REVIEW
“A party is entitled to a judgment notwithstanding the verdict (JNOV) when the
evidence at the close of the case, taken in the light most favorable to the nonmoving party,
does not legally support the nonmoving party’s claim or defense.” Jacobs v. Flynn, 131
Md. App. 342, 353 (2000) (citing Bartholomee v. Casey, 103 Md. App. 34, 51 (1994), cert.
denied, 338 Md. 557 (1995)). In reviewing the denial of a JNOV, “[a]n appellate court
performs the same task as the trial court, affirming the denial of the motion for judgment,
if there is any evidence, no matter how slight, that is legally sufficient to generate a jury
question.” Steamfitters Loc. Union No. 602 v. Erie Ins. Exch., 469 Md. 704, 726 (2020)
(internal citation and quotation marks omitted).
“In a civil case, the evidence is legally sufficient to support a finding in support of
the prevailing party if, on the facts adduced at trial viewed most favorably to that party,
any reasonable fact finder could find the existence of the elements of the cause of action
by a preponderance of the evidence.” Univ. of Md. Med. Sys. Corp. v. Gholston, 203 Md.
App. 321, 329 (2012) (citing Hoffman v. Stamper, 385 Md. 1, 16 (2005)). “[I]f the evidence
does not rise above speculation, hypothesis, and conjecture, and does not lead to the jury’s
11 Although MDH is appealing the circuit court’s denial of JNOV or in the alternative, for a new trial, their appeal only covers the denial of JNOV. Throughout its brief, MDH relies on the sufficiency of the evidence standard associated with JNOV and makes no arguments regarding the denial of the motion for a new trial. Accordingly, we will not address the standard for a new trial. 10 conclusion with reasonable certainty[,]” then the denial of the JNOV was error. Scapa
Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503 (2011) (internal citation and quotation
marks omitted). However, “[i]f the record discloses any legally relevant and competent
evidence, however slight, from which the jury could rationally find as it did, we must affirm
the denial of the motion.” Jacobs, 131 Md. App. at 353.
DISCUSSION
I. THE EVIDENCE WAS NOT SUFFICIENT TO SUPPORT BEST’S RETALIATION CLAIMS.
A. Additional Facts
In early 2019, Best emailed then-Governor Hogan and then-Secretary of Health,
Neall (Robison’s direct supervisor), expressing her dissatisfaction with the reassignment
and requesting to be transferred out of the Behavioral Health Administration. In February
of 2019, the head of MDH’s HR Department, Jennifer McMahan (“McMahan”) responded
on behalf of then-Secretary Neall, explaining that they would not be granting Best’s
transfer request, and encouraged Best “to take [her] talents and abilities to this new
assignment, use this opportunity to continue to learn and grow, and to impart [her] skill
and knowledge to staff under [her] supervision.”
When Best was temporarily reassigned to Spring Grove, she retained her ADON
job classification—grade twenty-one, step twenty—and her salary. The nursing
classifications at Perkins are one grade higher than all other state hospital grades and
classifications; ADONs at hospitals other than Perkins, such as Spring Grove, were a grade
twenty. This difference between grades is because Perkins is a maximum-security hospital
11 while Spring Grove is a medium-security hospital. Further, patients at Spring Grove are
typically accused of misdemeanor crimes, not felonies or other violent crimes as those at
Perkins.
B. The Parties’ Contentions
MDH contends that the evidence adduced at trial was legally insufficient for Best
to be able to meet all three elements of a retaliation claim under Chappell. Chappell v. S.
Md. Hosp., Inc., 320 Md. 483 (1990). MDH argues that the evidence was insufficient for
the jury to find that Best’s complaint to Preston and her OIG complaint were protected
oppositional activities because the complaints were not based on race or any other protected
class. 12
In response, Best contends that the evidence was legally sufficient to demonstrate
that she met the elements required to prove a retaliation claim. Best asserts that the evidence
was legally sufficient to show that her complaint to the OIG was a protected activity. 13
12 Because Best cannot meet the first element of a retaliation claim, we resolve this issue without addressing the other contentions. Had we not been able to do so, MDH avers that even if the OIG complaint was a protected activity, the evidence was legally insufficient to show that Best’s involuntary transfer was an adverse employment action because she was not demoted and her pay remained the same. MDH also asserts that the evidence was insufficient to show a causal connection between Best’s protected activity and her involuntary transfer, as she failed to demonstrate either theory of causal connection: because there was not enough temporal proximity between her OIG complaint and her reassignment, and because Best failed to present legally sufficient evidence of “but-for” causation. 13 Best’s other contention is that her involuntary transfer was an adverse employment action because, although she did not lose any pay, the terms and conditions of her employment substantially changed when she was involuntarily transferred from Perkins to Spring Grove. Best also asserts that the evidence was legally sufficient to demonstrate that there was a causal connection between her complaint to the OIG and her involuntary transfer via 12 C. Applicable Law
i. Background Law on Retaliation Claims
Federal law provides that it is an illegal employment practice “for an employer to
discriminate against any of [its] employees . . . because [the employees have] opposed any
practice made an unlawful employment practice by this subchapter, or because [the
employees have] made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.A. § 2000e-3(a)
(emphasis added). Additionally, in its section on the prohibition against retaliation, Title
20 of the Maryland State Government Article provides:
[a]n employer may not discriminate or retaliate against any of its employees or applicants for employment, . . . because the individual has: (1) opposed any practice prohibited by this subtitle; or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subtitle.
Md. Code (1984, 2021 Repl. Vol.), State Government (“SG”) § 20-606(f) (emphasis
added).
To make a prima facie retaliation claim under § 2000e-3(a), a plaintiff must establish
that “(1) the plaintiff engaged in a protected activity, such as filing a complaint with the
EEOC; (2) the employer acted adversely against the plaintiff; and (3) the protected activity
was causally connected to the employer’s adverse action.” Okoli v. City of Balt., 648 F.3d
216, 223 (4th Cir. 2011); see also Lockheed Martin Corp. v. Balderrama, 227 Md. App.
a “but-for” theory of causation, noting that temporal proximity is not the only applicable theory to demonstrate causal connection. 13 476, 504 (2016). The Maryland statute tracks the language of § 2000e-3(a). Chappell, 320
Md. at 496. Moreover, Maryland case law holds that,
[i]n the absence of legislative intent to the contrary, we read § 16(f)[14] of the state act in harmony with § 2000e–3(a) of the federal statute, and therefore construe the two provisions to fulfill the same objectives. In this regard, we may look to court decisions interpreting § 2000e–3(a).
Id. at 494. Thus, we may utilize the same criterion as applied under Title VII to “determine
whether a prima facie violation of the state law was established.” Id. at 496.
ii. Law on Protected Activities
Both § 2000e-3(a) and § 20-606(f) of the State Government Article of the Maryland
Code differentiate between two forms of protected activities—participation and opposition.
Gaines v. Balt. Police Dep’t, 657 F. Supp. 3d 708, 743 (D. Md. 2023) (referencing EEOC
v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005)). Section 2000e-3(a) of the
United States Code, like section 20-606(f) of the State Government Article, makes it
unlawful for an employer to discriminate against an employee either “‘because [the
employee] has opposed any practice made an unlawful employment practice’ under Title
VII (the opposition clause), or ‘because [the employee] has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing’ under
Title VII (the participation clause).” Chappell, 320 Md. at 494 (quoting 42 U.S.C.A.
§ 2000e–3(a)).
The opposition and participation clauses of § 2000e–3(a) have been liberally applied by the courts to shield employees who speak out against an
14 Section 16(f) of Article 49B was reorganized and recodified in 2009 at section 20-606(f) of the State Government Article of the Maryland Code. See 2009 Md. Laws 567. Although the statute number has changed, the text of the statute remains the same. 14 employer’s unlawful employment practices, the obvious rationale being that without some guaranteed protection to assert equal employment rights, the ultimate purpose of the act would be severely limited.
Id.
Only opposition is relevant here. “[P]rotected oppositional activities may include
staging informal protests and voicing one’s own opinions in order to bring attention to an
employer’s discriminatory activities, as well as complaints about suspected violations.”
Navy Fed. Credit Union, 424 F.3d at 406 (internal citations and quotation marks omitted);
see also Edgewood Mgmt. Corp. v. Jackson, 212 Md. App. 177, 201–02 (2013) (citing
Crawford v. Metro. Gov’t of Nashville, 555 U.S. 271, 276 (2009) (applying the same
standard and clarifying that staging an informal protest includes complaining to one’s
supervisor)). All a plaintiff must show is that “he or she held a good faith, subjective, and
objectively reasonable belief that the employer engaged in discriminatory conduct.”
Edgewood, 212 Md. App. at 202 (citing Peters v. Jenney, 327 F.3d 307, 320–21 (4th Cir.
2003)).
In sum, for an employee’s complaint to be a protected activity, the complaint must
concern the employer’s allegedly discriminatory conduct against a protected class.
Edgewood, 212 Md. App. at 201–02 (citing Crawford, 555 U.S. at 276); McIver v.
Bridgestone Americas, Inc., 42 F.4th 398, 411 (4th Cir. 2022) (holding that when an
employee’s complaints concerned an unlawful employment practice—tampering—and
were not linked to any racial motivation or other protected class, they were not protected
activities under Title VII).
D. Analysis
15 Best contends that her complaint to Preston and then to the OIG constitutes a
protected oppositional activity. For Best’s complaint to be a protected oppositional activity,
it must have been on the basis of race or some other protected status or class. See
Edgewood, 212 Md. App. at 201–02. Best’s complaint to Preston and the OIG can be
summarized into two categories of concern: that the three new hires lacked the requisite
expertise necessary to do their jobs effectively and that they were getting paid higher
salaries than nurses already employed at Perkins.
The record does not contain any legally relevant and competent evidence, in the
form of either records or testimony, however slight, from which the jury could rationally
find by the preponderance of the evidence, that the complaint was on the basis of race or
another protected class. The record lacks any text, receipt, or other documentation of the
language Best used, or quoted statements, when she made the OIG complaint. As such, the
jury could not look to the OIG complaint to see whether Best alleged retaliation on the
basis of race. Further, the record is devoid of any other documentation from Preston or the
OIG regarding her complaint regarding the three new hires.
The only documentary records provided to the jury were Best’s email that she sent
to then-Secretary Neall, and HR Director for MDH McMahan’s response on behalf of then-
Secretary Neall. In her email, Best discussed her desire to be transferred back to Perkins,
her belief that her involuntary transfer was illegal, and her belief that she was in a hostile
work environment; Best never suggested that any of this occurred because of her race. In
McMahan’s response, there was also nothing demonstrating that Best complained that she
was retaliated against on the basis of race.
16 In her testimony, Best did not suggest that her OIG complaint was on the basis of
race, or any other protected class, as required to successfully plead a retaliation claim under
Title VII and Title 20. Although the three new hires were African American, there was no
evidence to show that Best raised race as an issue in her complaint. For instance, on direct
examination, when asked why Best made an anonymous complaint to the OIG, Best
testified that the three new employees
got hired with no experience at a registered nurse supervisor position with no prior maximum security forensic psychiatric experience and [that she] believe[d] that they were getting a higher rate of pay than several nurses and nursing staff and supervisors who had been working at Perkins for several years, [] with much more experience than what the three individuals from Levindale had.
On cross examination, Best was also asked if she mentioned race as a factor in her transfer
in the letter that she sent to then-Governor Hogan, to which she replied, “I don’t believe I
did.” The attorney for MDH questioned Best specifically on what formed the basis for her
OIG complaint, asking, “[s]o, do you remember testifying [in your deposition] that
specifically your complaint to the OIG was about [Preston] and her hiring people from
Levindale?” to which Best replied, “[y]es, that’s what I testified to.”
On redirect, Best affirmed the statements that she made on direct, that she failed to
mention race or any other protected class, and only discussed the three new hires’ lack of
expertise and their pay in her complaint. Also on redirect, Best affirmed that the text of her
email to then-Governor Hogan did not refer to race. In her email Best stated, “I truly believe
that due to past issues I have had with [] Robison, this transfer was retaliatory.” Throughout
the entirety of Best’s testimony, no evidence provided to the jury indicated that Best, either
17 to Preston or in her OIG complaint, ever used the words or phrases ‘race,’ ‘discrimination,’
or ‘protected class or status.’ 15 Thus, there was no legally sufficient evidence upon which
the jury could conclude that Best’s complaint was a protected activity under Title VII or
Title 20.
Best asserts that there is legally sufficient evidence, such that her complaint to the
OIG was understood by MDH as alleging race-based discrimination which was met with
race-based retaliation. In support of her contention, Best cites to Burgess v. Bowen, 466 F.
App’x 272 (4th Cir. 2012). In Burgess, Burgess alleged that she suffered unlawful
retaliation on the basis of race when she was terminated and again when she was denied a
transfer. Burgess, 466 F. App’x at 278, 280. The parties contested whether Burgess had
engaged in a protected activity. Id. at 282. Burgess contended that she engaged in two
protected acts, the first, when she verbally complained up the chain of command that she
and another coworker were being “targeted,” and the second, when she questioned the
“fairness and equality” of her coworker’s termination. Id. In response to these complaints,
Burgess’s supervisor almost immediately asked to consult with the organization’s legal
counsel after receiving Burgess’s complaint, and the subsequent discussions were
regarding “EEO” issues. Id. Further, the evidence demonstrated that Burgess had also
15 One other witness that testified at trial was Kayla Smith (“Smith”), Best’s Licensed Clinical Social Worker. Smith testified as an expert, speaking to the mental health struggles that Best experienced as a result of MDH’s involuntary transfer of her. Smith testified that she and Best spoke a lot about Best’s work, how Best felt mistreated, and about betrayal and retaliation, especially that Best “felt she had a target on her back.” However, when Smith was asked, “[Best] never mentioned her race as the basis for these things happening at work in two years, right[],” Smith replied, “[n]ot that I remember.” 18 already raised concerns to others about racial discrimination. Id. at 282–83. Thus, the court
in Burgess found that the organization understood, or at the very least should have
understood, that Burgess was complaining of discriminatory conduct. Id. at 283. Applying
the standard from Burgess here, there is no evidence that MDH either understood or should
have understood that Best was complaining of retaliation on the basis of her race.
i. There is no evidence that MDH understood that Best’s retaliation complaint was based on race.
An examination of the MDH employees’ testimony demonstrates that there was no
evidence that MDH understood Best’s complaint of unlawful retaliation was race-based.
Robison testified at trial that he was not aware that Preston had meetings with Bailey and
Best about “a number of employees that had been coming over from Levindale.” Further,
Robison testified that no one told him there were concerns about the hiring practices at
Perkins. Consequently, Robison could not have understood Best’s complaints as race-
based, if he did not know there were complaints to begin with.
Rich also testified regarding the topics of the OIG investigation and the results of
that OIG investigation, none of which were related to race. Rich testified that the only topic
she recalled the OIG investigators discussing with her was the three new hires’
qualifications. Rich indicated that the sole outcome of the OIG investigation were changes
to Perkins’ hiring processes but not Perkins’ hiring policies. Rich added that the changes
to Perkins’ hiring processes were to make sure that there was a consistent process for all
interviews, not solely in nursing, and to accomplish this, they reviewed and made changes
to the scoring matrix used when conducting interviews for Perkins.
19 Additionally, a review of Shaw’s, Fogan’s, McMahan’s, and Bailey’s testimony
demonstrates that none of them understood Best’s retaliation complaint to be on the basis
of race. Shaw testified that there was no discussion of race or the 2017 OIG audit in any of
the conversations surrounding the reassignment. Fogan testified that as a result of the OIG
investigation, all three of the new hires were found to be qualified and that none of them
were dismissed, with no discussion of race. McMahan testified that she was never aware
that Best made the complaint to Preston or to the OIG about the three nurses’ qualifications
or that they were given higher salaries. Bailey testified that she was getting an influx of
complaints from nurses “who had been there, at Perkins, for years and had to train the three
that came from Levindale, who were [] making more money than them [but who] didn’t
have the knowledge, skills[,] or abilities to perform the job.” Bailey testified that, due to
these complaints, she learned of the problems with pay and inexperience; hence, she had
no reason to know that Best’s complaints were race-based. Bailey also testified that she
was not asked any questions by the OIG investigator and was not privy to who was
interviewed by the OIG investigator. As such, because no employees knew that Best’s
complaint to Preston or the OIG was race-based, there is no evidence that MDH understood
Best’s retaliation complaint to be on the basis of race.
ii. There is no evidence that MDH should have understood that Best’s retaliation complaint was based on race.
Best asserts that her removal from interview panels in temporal proximity to the
requirement that she attend diversity and cultural sensitivity training demonstrates that
MDH should have understood that Best’s opposition to an unlawful employment practice
20 was on the basis of race. While it is true that Best was taken off interview panels and was
required to attend diversity and cultural sensitivity training, there is nothing to demonstrate
that either of these decisions were made because MDH understood Best’s complaint to
Preston or the OIG as alleging race-based retaliation. Moreover, as MDH observes,
requiring an employee to attend diversity and cultural sensitivity training is a common and
lawful employment practice.
There was testimony elicited at trial regarding an email Best sent to then-Governor
Hogan, in which Best referred to the EEOC complaint that she filed but made no mention
of race. Even given this statement, Burgess remains distinguishable from the case before
us for two primary reasons. First, although Best filed EEOC complaints, the jury was not
permitted to consider evidence of such complaints. See supra note 8. Second, Best filed
the initial EEOC complaint one month after she was involuntarily transferred, and the
second EEOC complaint one year after she was involuntarily transferred. Not only are the
EEOC complaints not the protected oppositional activity, as Best filed them after the
adverse action occurred, but they also cannot serve as evidence that MDH should have
understood that Best was complaining of discriminatory conduct when she complained to
Preston and to the OIG because the jury was not allowed to consider evidence regarding
the EEOC complaints.
Therefore, Burgess is distinguishable from the case before us. There is not legally
sufficient evidence, even slight, such that a rational juror could conclude that MDH should
have known at the time that Best complained, that she was complaining of retaliation on
21 the basis of her race. Because there was no legally sufficient evidence that Best met the
first element of her retaliation claim, we will not address the other elements.
II. THE EVIDENCE WAS SUFFICIENT TO SUPPORT BEST’S RACE-BASED DISCRIMINATION CLAIMS.
After starting at Spring Grove, Best met with her new supervisor, Wendy Tarbalouti
(“Tarbalouti”), the Chief Nursing Officer 16 of Spring Grove. Tarbalouti informed Best that
her temporary reassignment had to do with a “Nigerian conflict” at Spring Grove. Best
learned that ADONs at Spring Grove, Abimbola and Okechukwu, came from two different
Nigerian tribes: Abimbola came from the Yoruba tribe, while Okechukwu was from the
Igbo tribe. Cultural conflicts caused Abimbola and Okechukwu to struggle to work
together. The record supports the contention that Abimbola “had a stronghold across the
hospital system” and the prominence of the Yoruba tribe “made it a little bit challenging
for some of the ADONs to get things done because of the [] tribal loyalties to [Abimbola].”
MDH contends that Best did not carry the evidentiary burden to support her race-
based discrimination claim pursuant to Coleman. Coleman v. Md. Ct. of Appeals, 626 F.3d
187 (4th Cir. 2010). In support of this argument, MDH asserts that the evidence was
insufficient to show that Best’s temporary, involuntary reassignment was an adverse
16 The Chief Nursing Officer is akin to the DON, as functionally, the positions require the employee to perform the same tasks and were both classified as senior program management positions. Where the positions slightly differ is in their respective grades, which meant the salaries could also differ. 22 employment action. MDH also contends that the evidence was insufficient for the jury to
find that Best was treated differently from similarly situated non-White employees. MDH
argues that after it demonstrated a legitimate, nondiscriminatory reason for Best’s
temporary reassignment, Best failed to meet the burden of persuading the jury that MDH’s
explanation for its reassignment of Best was merely a pretext for discrimination.
In response, Best contends that the evidence was legally sufficient to demonstrate
that she meets all four elements of her race-based discrimination claim. Best asserts that
the evidence was legally sufficient to show that her temporary reassignment was an adverse
employment action, citing recent precedent from the Supreme Court of the United States,
Muldrow v. City of St. Louis, Missouri, which was not yet published when MDH filed its
initial brief. See generally 601 U.S. 346 (2024). Best also contends that she presented
legally sufficient evidence such that a reasonable juror could conclude based on a
preponderance of the evidence that MDH employees similarly situated to Best were treated
more favorably. Best then concludes her argument with the opposite assertion of MDH:
she met her burden of persuading the jury that MDH’s explanation for its involuntary
transfer of Best was merely a pretext for discrimination.
In its reply brief, MDH recognizes the holding of Muldrow in a footnote, but fails
to incorporate it into its argument. Instead, MDH discontinues its argument that Best’s
reassignment was not an adverse employment action.
C. Background Law on Race-Based Discrimination Claims
Under Title VII, it is an unlawful employment practice for an employer “to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any
23 individual with respect to [the employee’s] compensation, terms, conditions, or privileges
of employment, because of such individual’s race . . . .” 42 U.S.C.A. § 2000e-2(a).
Maryland law directly parallels the federal law. See SG § 20-606(a)(1). A complainant may
meet the burden of establishing a prima facie case of discrimination under the federal and
state statutes by presenting direct or circumstantial evidence. Dobkin v. Univ. of Baltimore
Sch. of L., 210 Md. App. 580, 591–92 (2013).
“Evidence is ‘direct’ . . . when it consists of statements by a decisionmaker that
directly reflect the alleged animus and bear squarely on the contested employment
decision.” Williams v. Md. Dep’t of Hum. Res., 136 Md. App. 153, 163–64 (2000) (quoting
Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000)). “Absent direct
evidence, the elements of a prima facie case of discrimination under Title VII are: (1)
membership in a protected class; (2) satisfactory job performance; (3) adverse employment
action; and (4) different treatment from similarly situated employees outside the protected
class.” Coleman, 626 F.3d at 190; see also Dobkin, 210 Md. App. at 592–93 (referencing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). 17
In both its initial brief and its reply brief, MDH does not contend that Best fails to
meet the first two elements of a race-based discrimination claim; hence, we will discuss
them only briefly here. Best meets the first element, membership in a protected class,
because she brought her discrimination claim on the basis of race. With respect to
17 Though not expressly referenced by either party, both parties frame their analysis using the burden-shifting framework established in McDonnell Douglas. 24 satisfactory job performance, a plaintiff need not “show that he was a perfect or model
employee. Rather, a plaintiff must only show that he was qualified for the job and that he
was meeting his employer’s legitimate expectations.” Haynes v. Waste Connections, Inc.,
922 F.3d 219, 225 (4th Cir. 2019). The record easily provides legally sufficient evidence
from which a reasonable juror could conclude that Best performed satisfactorily, namely,
her performance evaluations. In Best’s performance evaluations she received either
“satisfactory” or “outstanding.” Robison himself testified that Best is a “tremendously
bright and smart clinician.” Shaw testified that Best was doing a good job, was a stellar
nurse, and did excellent work. Moreover, there was testimony that Best never received
progressive discipline, and no progressive discipline records were presented to the jury.
As such, we will address the third and fourth elements respectively: adverse
employment action, and different treatment from similarly situated employees outside the
protected class. We will also address MDH’s summary contention that the evidence was
insufficient to support a conclusion that Best’s assignment was racially discriminatory
under the McDonnell Douglas burden-shifting framework.
As a preliminary matter, the standard for what constitutes an adverse employment
action has changed. Until April of 2024, there were two paramount cases concerning the
manner in which a transfer can constitute an adverse employment action for a race-based
discrimination claim under Title VII and Title 20 in Maryland: Boone v. Goldin, 178 F.3d
253 (4th Cir. 1999) and James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371 (4th Cir.
2004). In April of 2024, the Supreme Court of the United States, in Muldrow v. City of St.
Louis, Missouri, resolved a circuit split regarding the standard for when a reassignment or
25 transfer can meet element three, an adverse employment action. 601 U.S. 346, 353 (2024)
(discussing the circuit split and the varying phrases in the transfer/reassignment context,
such as “significant level of harm,” versus “some harm.”). Under Boone and Booz-Allen, a
“reassignment [could] only form the basis of a valid Title VII claim if the plaintiff [could]
show that the reassignment had some significant detrimental effect.” Boone, 178 F.3d at
256 (emphasis added); Booz-Allen, 368 F.3d at 376. Muldrow abrogated Boone and Booz-
Allen. Muldrow, 601 U.S. at 353. Accordingly, we apply the standard from Muldrow. 18
i. Background on Muldrow v. City of St. Louis, Missouri
In Muldrow, the plaintiff, Sergeant Muldrow (“Muldrow”), sued the City of St.
Louis (“the City”) when her employer, the St. Louis Police Department (“the
18 “The filing of a lawsuit does not freeze the state of the law from the date of filing.” Md. Mil. Dep’t v. Cherry, 382 Md. 117, 129 (2004). Both the Maryland Supreme Court and the Supreme Court of the United States hold that “[i]n the overwhelming majority of cases, a judicial decision sets forth and applies the rule of law that existed both before and after the date of the decision.” State v. Daughtry, 419 Md. 35, 77 (2011); see also James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535 (1991) (stating that retroactive application of judicial decisions is “overwhelmingly the norm” and is “in keeping with the traditional function of the courts to decide cases before them based on their best current understanding of the law”) (plurality opinion).
Although James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 . . . (1991), did not produce a unified opinion for the Court, a majority of Justices agreed that a rule of federal law, once announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law. In announcing the judgment of the Court, Justice Souter laid down a rule for determining the retroactive effect of a civil decision: After the case announcing any rule of federal law has ‘appl[ied] that rule with respect to the litigants’ before the court, no court may ‘refuse to apply [that] rule . . . retroactively.’
Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 96 (1993); Polakoff v. Turner, 385 Md. 467, 486–87 (2005) (applying the holding of Harper as to recently decided cases). 26 Department”), transferred her from one job to another because of her sex. Id. at 350. From
2008 through 2017, Muldrow worked as a plainclothes police officer in the Department’s
specialized Intelligence Division (“the Division”). Id. While in this role, Sergeant Muldrow
investigated public corruption and human trafficking cases, oversaw the Gang Unit, and
served as head of the Gun Crimes Unit. Id. Moreover, because of her position, Muldrow
was deputized as a Task Force Officer with the Federal Bureau of Investigation (“FBI”);
this status granted her FBI credentials, an unmarked take-home vehicle, and the authority
to pursue investigations outside the City. Id. In 2017, a new Division Commander, Captain
Michael Deeba (“Captain Deeba”), was appointed. Id. at 351. Despite the outgoing
Division Commander’s remarks—that Muldrow “was a workhorse” and that “if there was
one sergeant he could count on in the Division, it was Muldrow”—Captain Deeba asked
the department to transfer Muldrow, stating that a male police officer “seemed a better fit
for the Division’s ‘very dangerous’ work.” Id.
The Department transferred Muldrow involuntarily, despite her opposition. Id. In
her new position, although her “rank and pay remained the same [], her responsibilities,
perks, and schedule did not. Instead of working with high-ranking officials on the
departmental priorities lodged in the Division, Muldrow now supervised the day-to-day
activities of neighborhood patrol officers[,]” which meant handling arrests, reviewing
reports, managing other administrative matters, and some patrol work. Id. Further resulting
from the involuntary transfer, Muldrow lost her FBI status, the unmarked take-home
vehicle, and a regular schedule. Id. Prior to her involuntary transfer, Muldrow worked a
“traditional Monday-through-Friday” work week, while after the involuntary transfer,
27 Muldrow’s schedule changed to “a ‘rotating schedule’ that often involved weekend shifts.”
Muldrow brought a Title VII suit challenging the transfer, alleging that the City, in
its involuntary transfer of her, discriminated against her based on sex with respect to the
terms or conditions of her employment. Id. The City moved for summary judgment. Id. at
352. The district court granted the City’s motion for summary judgment, pursuant to
precedent which stated that “Muldrow needed to show that her transfer effected a
‘significant’ change in working conditions producing ‘material employment
disadvantage.’” Id. The district court held that Muldrow could not meet this heightened
injury standard because she did not experience a change in her salary or rank. Id. The
district court held that Muldrow’s “loss of [] networking [opportunities] available in
Intelligence was immaterial because she had not provided evidence that it had harmed her
career prospects. And given her continued supervisory role, she had not suffered a
significant alteration to her work responsibilities.” Id. (internal quotations omitted). The
district court also held that the changes to Muldrow’s schedule appeared to be minor
alterations of employment, rather than material harms. Id. The Court of Appeals for the
Eighth Circuit affirmed. Id.
The Supreme Court of the United States granted certiorari to resolve a circuit split
regarding what level of harm a plaintiff must show to prove that a transfer or a reassignment
is an adverse employment action. Id. at 353. In resolving the circuit split, the Court clarified
that “[t]o make out a Title VII discrimination claim, a transferee must show some harm
respecting an identifiable term or condition of employment.” Id. at 354–55 (emphasis
28 added). Vacating the judgments of the district court and the Eighth Circuit, the Court held,
“[w]hat the transferee does not have to show, according to the relevant text, is that the harm
incurred was ‘significant.’” Id. at 355. The Court reasoned that adding the word
‘significant’ to the level of harm standard, as the district court did in Muldrow’s case, or
as the Fourth Circuit did in Boone and Booz-Allen, was imposing a new requirement on a
Title VII claimant, “so that the law as applied demand[ed] something more . . . than the
law as written.” Id. The Court noted that “there is nothing to otherwise establish an elevated
threshold of harm . . . . [a]nd that difference can make a real difference for complaining
transferees. Many forced transfers leave workers worse off respecting employment terms
or conditions.” Id. The Court explained that Title VII “flatly prevents injury to individuals
based on status, without distinguishing between significant and less significant harms.” Id.
at 358 (internal citation and quotation marks omitted).
According to Muldrow, the language of § 2000e-2(a)(1) requires only that Best
show that her involuntary transfer from Perkins to Spring Grove brought about some
“disadvantageous” change in an employment term or condition. Id. at 354 (citing Oncale
v. Sundowner Offshore Serv’s, Inc., 523 U.S. 75, 80 (1998)). The Court clarified that the
words ‘discriminate against’ “refer to ‘differences in treatment that injure’ employees.” Id.
(quoting Bostock v. Clayton Cnty., 590 U.S. 644, 681 (2020)). “[I]n the typical transfer
case, [] ‘worse’ treatment must pertain to . . . employment ‘terms [or] conditions.’” Id.
(quoting § 2000e-2(a)(1)). The Court also noted that “the ‘terms [or] conditions’ phrase . . .
is not used in the narrow contractual sense; it covers more than the economic or tangible.”
Id. (internal citations omitted).
29 In Muldrow, the Court highlighted the changes to Muldrow’s terms and conditions
of employment, narrowing in on the fact that Muldrow
was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders . . . to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work. [Muldrow’s] schedule became less regular, often requiring her to work weekends; and she lost her take-home car . . . . It does not matter, as the courts below thought (and Justice Thomas echoes), that her rank and pay remained the same, or that she still could advance to other jobs.
Id. at 359.
ii. The evidence was sufficient to show that Best’s reassignment was an adverse employment action.
Best’s contention, that her transfer from Perkins to Spring Grove caused her some
harm by changing the terms and conditions of her employment, is strikingly alike to that
in Muldrow. Best met her burden by presenting legally sufficient evidence, such that a
reasonable juror could find that her transfer from Perkins to Spring Grove “left her worse
off[,]” id. at 359, and caused her “some harm respecting an identifiable term or condition
of employment.” Id. at 354–55.
Regarding the changes to the conditions of Best’s employment, Best demonstrated
that working in Spring Grove was not merely a unit change because Spring Grove deals
with different types of patients than Perkins. Other MDH employees, including Shaw and
Rich, testified corroborating this difference. Although Best retained her grade, step, and
pay when she was involuntarily transferred to Spring Grove, the fact that Spring Grove’s
ADONs were a lower grade and step in the State compensation system demonstrates that
30 the positions were not of the same caliber, just as demonstrated in Muldrow. Id. at 359.
Further, while Spring Grove’s facilities are larger—it is the largest state facility in
Maryland—the hospital itself is less secure than Perkins, and it has a lower security
designation than Perkins.
Another change to the conditions of Best’s employment resulting from her transfer
was a change to her schedule. This is also analogous to Muldrow. See id. at 359. Post-
involuntary transfer to Spring Grove, Best was required to work more hours and had a
different schedule at Spring Grove. Best testified that at Perkins she worked mostly
Monday through Friday until 4:30 p.m. However, at Spring Grove, Best was expected to
work at least one weekend a month. Although Best’s weekend hours were not in addition
to her regular work week, as she could trade out other days and still have two days off a
week, requiring Best to work weekends was a significant schedule change. There were also
occasions when Best was required to work past her shift end time to provide nursing
coverage, which was never required of her at Perkins. These changes to the conditions of
Best’s employment occurred irrespective of the Covid-19 Pandemic. 19
Best also presented legally sufficient evidence, such that a reasonable juror could
find that there were changes to the terms of employment as a result of the involuntary
19 Best discusses the change in responsibilities that occurred when she was transferred to Spring Grove during the Covid-19 Pandemic, as she was assigned to the infection control department. Despite these substantial changes to the terms and conditions of her employment, there was no evidence demonstrating whether she would have incurred this responsibility at Perkins had she not been involuntarily transferred to Spring Grove. Thus, we will not analyze the changes to the terms and conditions of Best’s employment related to Covid-19—nor do we need to—as she experienced at least some harm under the standard from Muldrow. 31 transfer. An in-depth review of Best’s position descriptions between the two facilities also
reveals other significant differences between her stated responsibilities, who she was
responsible for supervising, and her working conditions. This change too, is comparable to
Muldrow. Id. at 359. While at Perkins, Best’s work schedule was classified as “[p]ermanent
day shift,” yet while involuntarily at Spring Grove, Best’s work schedule was classified as
“rotating shift,” and “other,” which provided: “Emergency Essential, Capable of working
eve/night and weekends as necessary as directed by the Chief Nursing Officer/designee.
Employee may be subject to call-in and overtime based on staffing needs.” Additionally,
the “Essential Job Functions” and the “percentage of time and/or weight of importance,”
the “Level, Frequency, and Purpose of Work Contacts,” and the “Working Conditions”
differed between Best’s job at Perkins and her job at Spring Grove.
While at Spring Grove, Best was assigned to medical psychiatric units which
required different levels of care, beyond psychiatry. This was a significantly different job
from her role at Perkins, and Best testified regarding this, stating: “[i]t was in a completely
different role, a completely different job.” Best also testified that the unit she was assigned
to at Spring Grove was “like a nursing home for severely medically compromised patients,
some of them in the last stages of their life.” At Perkins, Best’s job was to “provide trauma-
informed care so that the patients [could] recover and meet their maximum level of
functioning.” Best went on to testify that at Perkins, she “focused on helping people recover
and helping staff perform[,]” whereas, while at Spring Grove, “many of the patients’ goal
was not to recover but, it was their end of life.”
32 All Best was required to show was “some injury,” and that the transfer left her worse
off, “but need not have left her significantly so.” Muldrow, 601 U.S. at 359. Therefore,
because Best presented legally sufficient evidence by which a reasonable juror could find
that her transfer from Perkins to Spring Grove left her worse off—because it changed the
terms and conditions of her employment—she demonstrated an adverse employment
action.
iii. The evidence was legally sufficient to show that similarly situated employees were treated more favorably than Best.
“Absent unusual evidence of overt animus, a plaintiff seeking to prove unlawful
discrimination in employment will generally need to produce evidence of comparators, or
similarly[] situated employees of a different race, color, religion, sex, or national origin
who have been treated differently.” Netter v. Barnes, 908 F.3d 932, 939 (4th Cir. 2018). 20
“Comparator evidence refers to evidence that a similarly situated individual with sufficient
commonalities on the key variables between the plaintiff and the would-be comparator to
allow the type of comparison that, taken together with the other prima facie evidence,
would allow a jury to reach an inference of discrimination.” Taylor v. Giant of Md., LLC,
423 Md. 628, 632 n. 2 (2011) (internal citations and quotation marks omitted). While there
is no bright-line rule for what makes two jobs “similar” under Title VII, courts frequently
20 Just as we did supra, we again rely on Fourth Circuit precedent. As the Supreme Court of Maryland has stated, “we recognize the dearth of our own jurisprudence on this issue, as well as our history of consulting federal precedent in the equal employment area.” Taylor v. Giant of Md., LLC, 423 Md. 628, 652 (2011); see also Haas v. Lockheed Martin Corp., 396 Md. 469, 481 n.8, (2007) (“Title VII is the federal analog to [SG § 20-606]” and “our courts traditionally seek guidance from federal cases in interpreting Maryland’s [SG § 20-606(a)(1)(i).]”). See supra note 14. 33 consider the job descriptions and responsibilities, whether the two employees were subject
to the same standards and reported to the same supervisor, and whether the two employees
had comparable experience and education, among other qualifications. See Spencer v. Va.
State Univ., 919 F.3d 199, 207 (4th Cir. 2019).
“[O]ne who alleges discrimination need not identify and reconcile every
distinguishing characteristic of the comparators,” Taylor, 423 Md. at 655, but “[t]he
similarity between comparators and the seriousness of their respective offenses must be
clearly established in order to be meaningful.” Lightner v. City of Wilmington, 545 F.3d
260, 265 (4th Cir. 2008). An inference of race-based discrimination can be based on a
comparison to similarly situated colleagues of different races if those colleagues were
treated more favorably under similar circumstances. Booth v. Cnty. Exec., 186 F. Supp. 3d
479, 486 (D. Md. 2016) (citing Lightner, 545 F.3d at 265).
Best is Similarly Situated to Bailey
Here, Best, a White woman, presented legally sufficient evidence such that a
reasonable juror could find that she was similarly situated to Bailey, a Black woman. C.f.
Booth, 186 F. Supp. 3d at 486 (holding that Booth failed on his prima facie discrimination
claim because he did not identify the race of his comparators); Lightner, 545 F.3d at 265
(holding that the two officers were not comparable because the male plaintiff, as the Acting
Division Commander of the Professional Standards Division, was responsible for the ethics
rules, whereas the female comparator was not a member of the Professional Standards
Division). There are many similarities between Best and Bailey. Bailey was the only other
ADON at Perkins when Best was employed there—they held the same position and
34 reported to the same supervisor, Preston. Best and Bailey both worked their way up to the
ADON position, previously holding lower-level positions in government healthcare at
Perkins and other state facilities. In terms of overall tenure working for the State, at the
time of trial, Best had twenty-five years of nursing experience and Bailey had thirty. Both
Best and Bailey sat on interview panels for potential new hires until they were removed at
the same time from this role. Neither Best nor Bailey received any progressive discipline,
and neither had been placed on performance improvement plans. Neither Best nor Bailey
wanted to hold the DON position as they both feared that Robison would use the position
for immediate firing upon beginning this role, since it is an ‘at-will’ position. Of utmost
importance, Bailey had the same meeting with Robison and Rich and learned that Robison
was seeking to terminate her employment through progressive discipline, just as he and
Rich did with Best. Consequently, there is legally sufficient evidence by which a
reasonable juror could find that Best is similarly situated to Bailey.
Best is Similarly Situated to Okechukwu
MDH asserts that Okechukwu cannot be a comparator for Best under Swaso v.
Onslow County Board of Education, and Spencer v. Virginia State University, because
Okechukwu and Best worked at different locations. 21 698 F. App’x 745 (4th Cir. 2017)
21 At oral argument, counsel for MDH asserted that Okechukwu could not be comparator for Best because Okechukwu and Best were not similarly situated due to not having the same supervisor. In support of this argument, MDH cited to Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir. 1992). See also Cosby v. S.C. Prob., Parole & Pardon Serv.’s, 93 F.4th 707 (4th Cir. 2024) (citing Mitchell for this proposition). However, “[a]s Mitchell’s progeny has long noted, plaintiffs do not need to share the same supervisor in every case, and that comparison point is not a bar to relief in a case like this one, where the comparators are otherwise similar in ‘all relevant respects.’” Cowgill v. First Data Techs., Inc., 41 F.4th 35 (per curiam); 919 F.3d 199 (4th Cir. 2019). However, Swaso and Spencer are distinct from
the facts before us. In Swaso, the Fourth Circuit held that “Swaso failed to provide any
factual enhancement regarding the alleged comparators . . . that would permit the court to
reasonably infer their similarity.” Swaso, 698 F. App’x at 749. In Spencer, the Fourth
Circuit held that Spencer failed to demonstrate that she was similarly situated to her male
colleagues because she improperly relied “on broad generalizations at a high level of
abstraction.” Spencer, 919 F.3d at 204. The Fourth Circuit highlighted that Spencer’s
comparators were not similarly situated to her because Spencer’s comparators held “the
common title of ‘professor’ plus some generalized responsibilities . . .” and Spencer failed
to “demonstrate that the different jobs were equal in skill and responsibility.” Id.
(explaining that Spencer was a sociology professor, while the comparators she advanced
were engineering professors).
Swaso is dissimilar because Best provided factual enhancements demonstrating how
she is similarly situated to Okechukwu. See Swaso, 698 F. App’x at 749. While it is true
that Best and Okechukwu worked in different locations (Perkins and Spring Grove,
respectively), the location of an employee’s work and pay are not the only factual
enhancements courts can examine when determining if someone is a strong comparator.
See State Comm’n on Hum. Rels. v. Kaydon Ring & Seal, Inc., 149 Md. App. 666, 703
370, 382 (4th Cir. 2022) (quotation marks in original). Accordingly, it does not matter that Best and Okechukwu did not have the same supervisor, as they were similarly situated in other relevant respects. See id. (holding that two people advanced by the plaintiff could be comparators, and still be similarly situated, despite the fact that they had different supervisors than the plaintiff). 36 (2003) (holding that two employees, one White and one Black, were similarly situated
when they were both probationary employees who were performing poorly). Best and
Okechukwu both held the ADON title. Best and Okechukwu had similar schooling in that
they both held master’s degrees in the nursing profession. MDH employees testified that
both Best and Okechukwu were qualified to work at Perkins which they set out as a
permissible reason for the employee exchange. Moreover, an inference exists that MDH
found Okechukwu, the person who exchanged locations with Best, as similarly situated to
Best even prior to this lawsuit, as per the willingness to exchange them. Finally, both Best
and Okechukwu were having issues getting along with coworkers at their locations. Best
was a part of a series of meetings during 2018 and 2019 put forth to help improve the
communication and problematic dynamics between the nursing staff at Perkins, and
Okechukwu had issues getting along with employees at Spring Grove.
Spencer is likewise distinct from the case before us because Best and Okechukwu
held the same title of ADON, unlike the more general title of “professor.” See Spencer, 919
F.3d at 204 (noting that there are many different types of professors and that an engineering
professorship requires different skills, training, and efforts than a professorship in another
field, such as sociology). Because of these similarities, there is legally sufficient evidence
by which a reasonable juror could conclude that Best is similarly situated to Okechukwu.
Both Bailey and Okechukwu were Treated More Favorably than Best
The record demonstrates that there was legally sufficient evidence by which a
reasonable juror could find that Bailey and Okechukwu, both Black women, were treated
more favorably than Best, a White woman. Bailey lived closer to Spring Grove than Best,
37 and even offered that she was willing to be reassigned by telling her supervisor that she
wanted to be transferred to Spring Grove. Bailey was willing to be transferred to Spring
Grove because she had worked there previously for nine years and was familiar with the
culture. In response, her supervisor told her, “they won’t let you.” Bailey understood “they”
to mean Robison and Fogan. It was reasonable to conclude that Bailey was treated more
favorably by being allowed to remain in her position.
Likewise, there was evidence to support that Okechukwu was also treated more
favorably than Best. The record demonstrates that MDH had a number of concerns
regarding Okechukwu’s performance, including among them: an “attendance problem[;]”
a struggle to motivate the other nurses and employees that reported to her to achieve the
kind of results that Spring Grove needed; and Shaw’s dissatisfaction with Okechukwu due
to a significant number of patient abuse allegations against her. Despite these behavioral
concerns, Okechukwu was treated more favorably than Best, by receiving a pay raise and
an assignment to work at Perkins, a more prestigious and safer State facility. Thus, because
Best presented legally sufficient evidence to illustrate that Bailey and Okechukwu were
similarly situated to her but were treated more favorably, she demonstrated different
treatment from similarly situated employees outside the protected class.
iv. Best provided legally sufficient evidence, such that a reasonable juror could conclude that MDH’s reasons for transferring Best were mere pretext for discrimination, satisfying the McDonnell Douglas burden- shifting framework.
“[I]n cases where the evidence of discrimination is circumstantial rather than direct,
Maryland courts apply the three-step burden-shifting analysis first articulated
38 in McDonnell Douglas . . . .” Belfiore v. Merchant Link, LLC, 236 Md. App. 32, 45 (2018)
(referencing Dobkin, 210 Md. App. at 592–93). Under the McDonnell Douglas framework,
once a plaintiff meets the initial burden of proving a prima facie case by a preponderance
of the evidence, “[t]he burden of production then shifts to the employer to . . . provide
‘some legitimate, nondiscriminatory reason’ for the adverse employment action.” Sharif v.
United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016) (quoting McDonnell Douglas, 410
U.S. at 802); see also Dobkin, 210 Md. App. at 593. If the employer meets this burden,
then “the plaintiff resumes the burden of persuading the factfinder that the employer’s
proffered explanation is merely a pretext for discrimination.” Sharif, 841 F.3d at 203.
The Burden Shifted to MDH
Here, the evidence supports that Best met her initial burden of proving her prima
facie case by a preponderance of the evidence, as demonstrated supra. The burden then
shifted to MDH to provide some legitimate, nondiscriminatory reason for Best’s transfer.
Sharif, 841 F.3d at 203. MDH provided evidence to meet this burden by asserting that it
involuntarily transferred Best for another reason: that there was a clinical need at Spring
Grove for a stronger nurse. In support of this reason, Robison testified: “Ms. Best is a very
strong clinical nurse and I immediately thought of her as a good fit. She has . . . training
and background in education . . . .” Later, Robison also testified, “[w]e weren’t making
reassignments based on any other concerns or assessments about their performance.”
Further, MDH offered evidence that approximately two dozen employees were reassigned
during Robison’s tenure.
39 Shaw’s testimony also supports MDH’s position that it had a legitimate,
nondiscriminatory reason for involuntarily transferring Best. When asked, “[w]hat role, if
any, did cultural tensions play in the decision to reassign Ms. Best[,]” Shaw replied,
“[n]one. It had nothing to do with that.” Shaw was asked directly at trial if his decision to
swap Okechukwu with Best was because of Best’s race or the 2017 OIG audit. In answering
both questions, Shaw replied, “[n]one.” Shaw was also asked if the issues between the
members of the Yoruba and Igbo tribes were the reason for the involuntary transfer. He
testified that changing the ADON at Spring Grove could not fix that problem.
Best Resumed the Burden of Demonstrating that MDH’s Reasons were Pretextual
Because MDH offered evidence to meet its burden, Best then resumed the burden
of persuading the jury that MDH’s proffered explanation was merely a pretext for
discrimination. See Sharif, 841 F.3d at 203. “A discrimination plaintiff may show that the
employer’s stated legitimate and non-discriminatory reasons for termination are pretext for
discrimination by proving ‘both that the reason was false, and that discrimination was the
real reason for the challenged conduct.’” Nerenberg v. RICA of S. Md., 131 Md. App. 646,
674 (2000) (quoting Jiminez v. Mary Washington Coll., 57 F.3d 369, 377 (4th Cir.
1995), cert. denied, 516 U.S. 944, (1995)); see also Edgewood, 212 Md. App. at
200. “Pretext might be established by showing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its action that a reasonable factfinder could rationally find them unworthy of
credence and hence infer that the employer did not act for the asserted non-discriminatory
reasons.” Nerenberg, 131 Md. App. at 675 (internal citations omitted) (emphasis added).
40 Best presented legally sufficient evidence, such that a reasonable juror could
conclude that MDH’s proffered reasons for the involuntary transfer of Best were pretextual
as MDH’s reasons contained weaknesses. For example, none of the MDH employees
explained why Okechukwu was exchanged with Best instead of Abimbola. In addition,
despite the language of the letter Best received, no MDH employee provided a length of
her “temporary reassignment.” Robison testified that he “had no understanding of how long
the reassignment was going to last.” Robison also testified that he did not produce or send
any documents that stipulated the parameters of the temporary reassignment. Shaw testified
that he did not know how long the transfer would last, and that it would depend on whether
Best “would meet the objectives of getting things settled down.” Rich testified that she had
no understanding, despite being in HR, as to what clinical or “operational needs” needed
to be met for Best to be able to return to Perkins.
Moreover, despite her repeated questions regarding what objectives she needed to
achieve to be transferred back to Perkins, Best was not informed what those objectives
were. Shaw testified that he told the Chief Nursing Officer some of those criteria, such as
stability and fewer patient and family complaints; however, he never told Best of these
criteria. When asked how he tracked this information, Shaw was unable to provide an
answer or process, outside of reviewing “how much [his] phone [was] ringing, [and] how
many complaints [he was] getting,” without a reporting obligation or other method of
tracking this data. Further problematic for MDH’s evidence, no MDH employee provided
an explanation as to the reason Best was not transferred back to Perkins or why she had to
41 reapply for her job to be able to go back to Perkins, although Best’s involuntary transfer
was purportedly “temporary.”
In addition, there was also legally sufficient evidence such that a rational juror could
find, based on the preponderance of the evidence, that inconsistencies, incoherencies, and
contradictions fail to support MDH’s stated nondiscriminatory reason for transferring Best.
See Nerenberg, 131 Md. App. at 670. During trial, Best’s attorney asked Robison why he
did not terminate the nurses at Spring Grove and hire new nurses to meet the need. Robison
answered that it “was not something [they] considered doing,” because the clinical need at
Spring Grove did not “warrant[] that level of discipline.” Despite this testimony, the
evidence showed that Robison had previously attempted to terminate Best and Bailey. A
jury could conclude that this statement is inconsistent with rationale for terminating Best.
Another inconsistency in Robison’s testimony was that he “had no understanding
of whether or not [Best] was performing well at her position at Perkins, but [he] thought
she was going to fix the problem at Spring Grove[,]” which contradicts his inability to
identify the problem. Robison further testified that Best could not be transferred back to
Perkins because of the “[c]linical issues that remained at Spring Grove[,]” but was then
unable to identify the clinical issues. One could conclude that Robison’s testimony
illustrates that his “reasons” for transferring Best, the “clinical needs,” were pretextual. See
Edgewood, 212 Md. App. at 207 (holding that evidence was sufficient for jurors to
conclude that an employer’s justification for why its employee was managing different
accounts than her usual ones was inconsistent with the employer’s stated justification, and
42 thus the evidence was sufficient to permit reasonable jurors to find that the explanations
were pretextual).
Further inconsistencies can be found in Shaw’s testimony. Shaw testified that
neither he, Fogan, nor Robison discussed Best’s clinical skills, yet Best was the only
ADON that could address the clinical need at Spring Grove. Moreover, even with
Robison’s lack of knowledge regarding the clinical reasons that required Best to be
transferred to Spring Grove, Shaw testified that there were cultural issues at Spring Grove
as the majority of the nursing staff had ties to the Yoruba tribe, including Shaw, while
Okechukwu was from the Igbo tribe. Notwithstanding Shaw’s testimony that his reason for
selecting Okechukwu had nothing to do with the cultural conflicts at Spring Grove, Shaw’s
testimony suggests otherwise:
[Best’s Attorney]: But you knew and the whole reason you were even having this conversation about transferring was because you had issues at Spring Grove, there was a clinical need at Spring Grove that wasn’t being met.
[] Shaw: What I wanted was a different kind of clinical leadership, okay? Because [Okechukwu] was struggling so much and having so, so many conflicts. So, I wanted someone to come through who has a fresh set of eyes, who’s not tied to any people there and could evaluate it and then make some changes.
[Best’s Attorney]: You said not associated with any people there?
[] Shaw: Yeah, someone who’s not tied into any people too close, you know, sometimes people get too friendly.
Bailey’s testimony is further illustrative. When asked “[d]id you have an understanding as
to what [] Shaw did to resolve the tribal issues at Spring Grove?” Bailey replied that Shaw
exchanged Okechukwu and Best. Further, Shaw’s testimony could be deemed inconsistent
43 in that he could not provide reasons as to why he did not transfer Best to Perkins—which
he could have done as he subsequently filled Robison’s position and had appointing
authority—even though he reassigned a different employee who asked to be transferred,
just as Best had. Based on such evidence, a reasonable juror could find, based on the
preponderance of the evidence, that MDH’s proffered reasons were mere pretext for
discrimination. Hence, we perceive no error in the trial court’s decision to deny MDH’s
motions for JNOV.
CONCLUSION
In conclusion, there is no legally sufficient evidence such that a reasonable juror,
based on the preponderance of the evidence, could find Best’s complaint to Preston or to
the OIG was based on race. Accordingly, the denial of JNOV as to Best’s retaliation claim
under 42 U.C.S.A. § 2000e-3(a) and SG § 20-606(f) is reversed and remanded. On remand,
the trial court shall grant JNOV in favor of MDH as to the retaliation claim. However, there
is legally sufficient evidence such that a reasonable juror, based on the preponderance of
the evidence, could find that Best was racially discriminated against when she was
involuntarily transferred under 42 U.S.C.A. § 2000e-2 and SG § 20-606(a)(1)(i). There is
sufficient evidence that MDH’s involuntary transfer of Best was an adverse action, that
Bailey and Okechukwu were similarly situated to Best yet treated more favorably, and that
Best met her burden under the McDonnell Douglas burden-shifting framework. Thus, we
cannot say the circuit court’s denial of JNOV as to Best’s discrimination claim was based
on legally insufficient evidence, and hence, that decision is affirmed. However, because
the jury verdict sheet did not differentiate the damages per each claim, we remand for a
44 new trial as to damages against MDH. The new trial shall be limited to determination of
the damages afforded to Best pursuant to her race-based discrimination claim.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY REVERSED AND REMANDED IN PART AND AFFIRMED IN PART. COSTS TO BE PAID BY APPELLANT.
Related
Cite This Page — Counsel Stack
Dept. of Health v. Best, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-health-v-best-mdctspecapp-2024.