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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

JAMES A. JONES, JR. Plaintiff, v. Civil Action No. AW-99-3166 MARYLAND NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Defendant. MEMORANDUM OPINION Presently before the Court is Defendant Maryland National Capital Park and Planning Commission's ("MNCPPC"), Motion for Summary Judgment of Plaintiff James A. Jones, Jr.'s Complaint. With an opposition having been filed by Plaintiff, and a reply filed by Defendant, the motion is ripe for resolution.1 No hearing is deemed necessary. See Local Rule 105.6 (D.Md.). For the reasons discussed below, the Court will grant Defendant's Motion for Summary Judgment. BACKGROUND Plaintiff James Jones, an African-American male, is a level II Recreation Center Supervisor employed by Defendant MNCPPC for the management of one of the twelve centers in the Southern Area Division. Plaintiff began his employment with Defendant in 1976 as an Assistant Facility Director.

The parties have also submitted to the Court a Supplemental Reply by Defendant MNCPPC, a Response by Plaintiff, and finally, a Reply to Plaintiff's Response. Although these additional pleadings do not conform to the local rules, the Court has taken them into consideration in deciding the Defendant's Motion for Summary Judgment. 1

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According to Plaintiff, Defendant regularly provides Level II Supervisors with assistants called a Supervisor I or Assistant. Plaintiff contends that Level II Supervisors who are white males or females are provided with Assistants. He contends that all six of the twelve centers which are operated by whites or females have assistants and only one of the centers led by an African-American male has been provided with an assistant. Plaintiff applied for a transfer to the Tucker Road Community Center. In April 1998, Plaintiff was informed that he was not selected for the position. Plaintiff complained about his non-selection to Wally Stephenson, Plaintiff's supervisor. During the next rating period, in March of 1999, Mr. Jones received an uncharacteristically low performance appraisal which he attributed as retaliation for his complaint of non-selection. Plaintiff contends that Defendant's refusal to provide Jones the same conditions of employment (including funding and staffing) as those afforded to his similarly-situated white male and female counterparts without legal justification have reduced his opportunities for promotion based on the unfair evaluation by Defendant and being denied the support of an assistant.

Plaintiff filed an administrative charge with both the Maryland Commission on Human Relations and the EEOC on May 25, 1999. Plaintiff filed this action in United States district court on October 20, 1999. A hearing was held by this Court on June 26, 2000 on Defendant's Motion to Dismiss, or in the alternative, Motion for Summary Judgment. The Court, by order dated June 27, 2000, granted Summary Judgment to Defendant on Plaintiff's retaliation claim and his intentional infliction of emotional distress claim. The Court also dismissed, without prejudice, Plaintiff's hostile work environment claim. Defendant now moves, again, for summary judgment on the only remaining count of race and sex 2

discrimination. STANDARD FOR MOTION FOR SUMMARY JUDGMENT Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment will be granted when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986). While the evidence of the non-movant is to be believed and all justifiable inferences drawn in its favor, a party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences. See Deans v. CSX Transportation, Inc., 152 F.3d 326, 330-31 (4th Cir. 1998); Beale v. Hardy , 769 F.2d 213, 214 (4th Cir. 1985). To defeat such a motion, the party opposing summary judgment must present evidence of specific facts from which the finder of fact could reasonably find for him. See Anderson , 477 U.S. at 252; Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex , 477 U.S. at 327 (citations omitted). Accordingly, in determining whether genuine and material factual disputes exist, the Court has reviewed the memorandums and the exhibits attached thereto, construing all facts, and all reasonable inferences drawn therefrom, in the light most favorable to the non-movant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

DISCUSSION Plaintiff has asserted a claim against Defendant MNCPPC for race and sex discrimination 3

against African-American males. In order for Plaintiff to establish a prima facie case of discrimination, Plaintiff must present evidence sufficient to prove four elements: (1) that he is a member of a protected class; (2) that he was otherwise qualified for his position; (3) that in spite of his qualifications, he was not promoted; and (4) that the position remained open to, or was filled by, similarly qualified applicants after his denial of the promotion. Reeves v. Sanderson Plumbing Products Inc., 120 S.Ct. 2097, 2106 (2000). A. Has an Adverse Employment Action Been Taken Against the Plaintiff? The crux of Plaintiff's argument is that he was denied the use of a Supervisor I assistant to help him in his position. Plaintiff argues that only white or female supervisors received assistants. Plaintiff theorizes that he cannot be promoted because he does not have an assistant to help him perform his job in a more efficient manner. Having an assistant, the Plaintiff argues, would allow him to attend necessary supervisors meetings and allow him more free time to raise money to support and repair the youth centers. Defendant spends a significant amount of space in their pleadings arguing that Defendant has not suffered an adverse employment action and therefore cannot sustain a case for race and sex discrimination. The Defendant seeks to bolster this argument by citing to the Administrative Supervisor's testimony that Plaintiff has not applied for a promotion since at least 1994. (See, Exhibit 1 to the Defendant's Reply in connection with their earlier Motion to Dismiss, or in the alternative, Motion for Summary Judgment.) The evidence submitted in the instant case does not support the Administrative Supervisor's testimony. Plaintiff has submitted two letters which indicate that he was not selected for higher positions within MNCPPC. (Plaintiff's Response to Memorandum in Support of Motion for Summary Judgment, Exhibit # 11, 12.). The letters both state that "Your request for 4

consideration was forwarded to the appointing department for its review and consideration. We regret to inform you that you were not selected." Plaintiff has adequately shown that he has applied for advanced positions within the MNCPPC, but was denied the promotion on at least two occasions. Therefore, Plaintiff has shown that an adverse employment action was taken against him, and can proceed in his attempt to establish a prima facie case of discrimination. B. Prima Facie Case of Discrimination As an African-American, Plaintiff is a member of a protected class. As far as his qualifications, Plaintiff received very favorable evaluations until his most recent one.2 However, Plaintiff does not go into any more detail about his particular job qualifications, nor the job qualifications for the positions for which he applied and was rejected. Since, the facts are to be viewed in the light most favorable to the non-moving party, the Court will assume that receiving consistently high evaluations makes a person qualified for a promotion. Plaintiff was rejected on January 15, 1999 for the position of Recreation Center Supervisor II and on June 4, 1999, for the position of Enterprise Facility Manager II. Finally, after Plaintiff was transferred from the Stephen Decatur Community Center, he was replaced by, at first, Lewis Buck, a white-male, who refused the transfer, and then John Lee, an Asian-American. Both individuals were offered the services of a Grade 14 Supervisor Assistant. Based on the evidence presented in the instant case, Plaintiff has established a prima facie case of racial discrimination. C. Defendant's Rebuttal

It appears from Plaintiff's pleadings that he is attempting to reargue that Defendant gave him a bad review in retaliation to Plaintiff's EEOC charge. This Court's June 27, 2000 order dismissed Plaintiff's claim for retaliation. Therefore, the Court will not revisit the issue in this memorandum opinion. 5

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Since the Plaintiff has established a prima facie case of racial discrimination, the burden shifts to the Defendant to rebut the inference created by the Plaintiff. McDonnell Douglas Corp v. Green , 411 U.S. 792 (1973). The Defendant can rebut the Plaintiff's prima facie case by articulating "some legitimate, nondiscriminatory reason," for the alleged disparate treatment. Reeves at 2097. Defendant is able to offer numerous legitimate, nondiscriminatory reasons for Plaintiff's treatment. Plaintiff admits in his deposition that from 1993-1996 he was assigned a Recreation Center Supervisor I assistant. (Supplemental Memorandum in Support of Motion for Summary Judgment, Exhibit # 1, pg. 68). For the years of 1997-1999, Plaintiff was without a Supervisor I assistant because of the budgetary impact of funding mandatory conversion of government employees from a 37.5 hour to a 40 hour work week. Additionally, during the time in which Plaintiff was without a Supervisor I assistant, Defendant supplied him with a Contract Term employee to assist him with administrative duties. Defendant also notes the unusual amount of time that the Plaintiff was away from work for unfortunate circumstances beginning in 1998. (Approximately 414 days from October, 1998, until July 12, 200 when Plaintiff left his work due to stress. See Id. at

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