E-Alert Case Updates

Plaintiffs Were Unable To Prove Race And Age Discrimination Against The Mayor & City Council of Baltimore

Thomas, et al. v. Mayor & City Council of Baltimore, et al.
Civil No., JKB-11-2479 (D. Md. 2013)
by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Glenwood Thomas, Eric Banks, and Lanny Boddy (“Plaintiffs”) filed a lawsuit against the City of Baltimore (“City”), claiming racial and age discrimination. They alleged their positions were eliminated in the Department of Public Works (“DPW”) and new, similar positions were created in the Department of Housing and Community Development (“HCD”), but that they were not hired for the new positions; instead, younger African Americans or Caucasian individuals were hired.

Plaintiffs are African Americans who were in their mid-fifties at the time of the events in 2009 of which they have complained. In May 2009, they were informed that they would be laid off from their positions as Environmental Crimes Investigators at DPW effective June 30, 2009. In 2008 and 2009, it was decided that the positions in the DPW’s Environmental Crimes Unit would be abolished and its duties would be transferred to HCD, which was already doing similar enforcement work with greater success and better resources. The positions were transferred on July 1, 2009.

HCD posted a notice for two Code Enforcement Investigator II positions (three were authorized but one was subject to a hiring freeze), and Plaintiffs applied and were selected, along with other individuals, to interview for the two positions. The interview panel employed a set of interview questions formulated by the panel and approved by HCD’s human resources department. Besides Plaintiffs, the panel interviewed Craig Crippen (“Mr. Crippen”) and Shawn Kolego (“Mr. Kolego”). Each panel member assigned a numerical weight to each answer given by each interviewee. All three panel members scored Mr. Crippen the highest and Mr. Kolego the second highest. Out of the three Plaintiffs, only one met the requirement for Special Enforcement Officer certification (a requirement for the position); the other two had criminal records that prevented them from obtaining that certification.

Besides the certification issue, Plaintiffs’ answers to the interview questions were deemed, in many instances, deficient and unsatisfactory. Messrs. Crippen and Kolego were selected for the two positions. Mr. Crippen is African American and Mr. Kolego is Caucasian. Mr. Crippen was 38 and Mr. Kolego was 31 at the time of the interviews.

Counts One and Two of Plaintiffs’ Complaint, claiming racial and age discrimination in violation of Title VII (42 U.S.C. § 2000e, et seq.), the Age Discrimination in Employment Act (“ADEA”) (29 U.S.C. § 621, et seq.), and 42 U.S.C. § 1981, are analyzed in a similar manner. Disparate treatment in employment on the basis of race is evaluated identically under both Title VII and § 1981. In addition, the same mechanism used to evaluate racial discrimination claims is employed in evaluating Plaintiffs’ age discrimination claims. However, the Supreme Court has clarified that age discrimination must be proven under a “but for” standard, while racial discrimination may be proven under either a “but for” or a mixed-motive standard. Plaintiffs, who have provided no direct evidence of discriminatory animus under any of these theories, are necessarily proceeding under the burden-shifting scheme.

The equal-protection claim asserted by Plaintiffs in Count Three under 42 U.S.C. § 1983 was analyzed under the burden-shifting scheme. In their case against the City under their theory of discriminatory layoffs at DPW and failure to rehire at HCD, Plaintiffs could establish a prima facie case by proving (1) they were members of a protected class, (2) at the time of their demotions or terminations, they were qualified for their positions and meeting their employer’s legitimate expectations, (3) they were demoted or terminated, and (4) they were replaced by individuals outside of their protected class with comparable qualifications. If Plaintiffs established their prima facie case, then the burden would shift to the employer to produce a legitimate, nondiscriminatory reason for its action. Once the employer has met that burden of production, then the presumption of discrimination under the prima facie case goes away and Plaintiffs must prove the employer’s proffered justification is pretextual. This final inquiry merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.

Plaintiffs established their prima facie case, but the City produced evidence of a legitimate reason for its employment decisions affecting Plaintiffs. The burden then shifted back to Plaintiffs to prove that the City’s reason was pretextual and that its decisions were premised upon unlawful discrimination. Having reviewed all of the materials submitted by the parties, the court found nothing to support Plaintiffs’ allegation of discriminatory animus by the City. All three Plaintiffs provided affidavits that drew into question the basis for the City’s performance assessment of the former Environmental Crimes Unit and the wisdom of abolishing the unit, transferring its function to HCD, and reorganizing HCD’s Special Investigations Unit to incorporate that function. But whether the City’s decision was wise was not the issue. Employers are granted leeway to make decisions, even arguably bad decisions, affecting its employees as long as their decisions are not founded upon discriminatory intent. Accordingly, the court held that Plaintiffs failed to carry their burden of proof and that the City was entitled to summary judgment.