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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SHAWN BERNSTEIN * * * * * * *

v.

CIVIL NO. L-99-3056

THE ST. PAUL COMPANIES, INC.

MEMORANDUM OPINION This is an employment discrimination case. Now pending is defendant's motion for summary judgment. Because the motion has been fully briefed, no hearing is necessary. See Local Rule 105.6. For the reasons stated herein, the Court, by separate order, will enter summary judgment in favor of the defendants as to all claims except for the claim of retaliation.

I. Summary Because the case is complex, an overview is in order. In 1998, St. Paul, an insurance company headquartered in Minnesota, acquired USF&G Corporation, an insurance company headquartered in Baltimore. One of the business reasons for the acquisition, technically a merger, was the saving of overhead costs by the elimination of redundant jobs. Before the merger, plaintiff Shawn Bernstein worked in the USF&G legal department. Bernstein spent half his time on insurance coverage issues, and the other half on governmental affairs. A common thread ran through Bernstein's performance evaluations: high marks for his intellect and ability to analyze legal questions, but concerns over his interpersonal skills.

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Bernstein's superiors commented that he tended to be introverted, diffident in large groups, and was sometimes demeaning to those less intelligent. Bernstein's position with USF&G was eliminated. This did not mean, however, that he was automatically out of a job. Under reduction-in-staff procedures, incumbents were required to compete for their positions. Bernstein was given the opportunity to compete for the position of federal affairs representative against the St. Paul incumbent, Tracey Burton. Burton had become federal affairs representative for St. Paul several months before the merger. St. Paul's chief executive officer, Doug Leatherdale, reported that he was "extremely pleased with the job that [she] was doing." Mot. Ex. 9 at 34. After the merger, Karen Himle, to whom the federal affairs representative would report, compared Burton and Bernstein as candidates. Himle interviewed Bernstein and also spoke with Bernstein's supervisors at USF&G. Each supervisor recommended against giving Bernstein the federal affairs job, based in large part on their perceptions of him as an introvert, with excellent research skills but weaker interpersonal skills. The views of the supervisors confirmed Himle's own perspective on Bernstein. Before the competition, Burton had reported to Himle for several months. Himle thought that Burton had done a good job; she was also aware of the CEO's satisfaction with Burton's performance. Himle decided to retain Burton and terminate Bernstein.

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After exhausting his administrative remedies, Bernstein filed the instant suit.1 Bernstein contends that his objective qualifications (legal ability, knowledge of insurance law, and lobbying experience) were superior to Burton's. Bernstein claims that St. Paul preferred Burton for the job because she was a younger (then under age 40), African-American female, whereas he was an older (mid-50s), white male with a disability resulting from polio. Bernstein points to a speech in which St. Paul's CEO stated that (i) he did not want the company to consist exclusively of white men, and (ii) that he would base part of his managers' bonuses on their success in supporting "diversity." The Court must analyze each of Bernstein's claims under the familiar McDonnell Douglas framework.2 Because the federal affairs position would have represented a promotion (with a $30,000 raise), Bernstein must establish a prima facie case by showing: (i) that he was a member of a protected class, (ii) that St. Paul had an open position for which he applied, (iii) that he was qualified for the position, and (iv) that he was rejected under circumstances giving rise to an inference of unlawful discrimination. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 95960 (4th Cir. 1996).

Bernstein's complaint states causes of action for reverse race and reverse gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

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