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REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 3052

September Term, 1999

JOHN R. WILLIAMS

v.

MARYLAND DEPARTMENT OF HUMAN RESOURCES, ET AL.

Byrnes, Adkins, Smith, Marvin H. (Retired, Specially Assigned) JJ.

Opinion by Adkins, J.

Filed: December 28, 2000

John R. Williams, appellant, sued his former employer after it promoted a woman instead of appellant. He asserted sex

discrimination, age discrimination, constructive discharge, and breach of contract of Human claims against (the the State of Maryland and Bert

Department

Resources

"Department"),

Finklestein, who was then Inspector General of the Department (collectively "appellees"). The Circuit Court for Anne Arundel

County granted summary judgment in favor of appellees on all counts. On appeal, appellant raises the following issues, which

we have rephrased. I. Did the trial court summary judgment discrimination claim? Did the trial court summary judgment discrimination claim? err on in granting the sex

II.

err on

in granting the age

III.

Did the trial court err in granting summary judgment on the constructive discharge claim on the grounds that appellant failed to comply with the Maryland Tort Claims Act? Did the trial court err in granting summary judgment on the breach of contract claim?

IV.

We shall affirm the judgments on all counts except for the sex discrimination claim. Because there was sufficient direct

evidence that gender bias affected the employment decision, we shall reverse the judgment on that count, and remand for further

proceedings.

FACTS AND LEGAL PROCEEDINGS The Department hired appellant in May 1985. appellant became a Fiscal Specialist and II. This Eventually, job involved waste, In

"prevent[ing],

detect[ing]

eliminat[ing]

fraud,

mismanagement and corruption within the Department . . . ."

late 1993, the Department announced that it was creating a new Fiscal Specialist According III to position "to serve the new as an auditor-indid not

charge."

Finklestein,

position

require supervisory experience. Eleven employees from the Department initially expressed

interest in the position.

In an affidavit, Finklestein stated

that he informally interviewed each of the eleven candidates, and then selected three of them as finalists. chosen as a finalist. Appellant was not

Two of the three finalists were male and Each of the finalists was

the other, Linda Heaton, was female.

interviewed individually by a panel consisting of Finklestein and three other supervisors. Heaton for the position. Finklestein stated in his affidavit that he did not choose appellant as a finalist because his "[i]nterview was not as good as [the three] top candidates [and his] [a]bility to interact at In April 1994, the panel selected

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[the] supervisory level [was] questionable." appellees appellant. produced After memoranda being detailing over

During discovery, relating promotion, to in

problems for the

passed

January 1995, appellant was referred to the Employee Assistance Program ("EAP")1 because of his inability to follow directions. On March 26, 1998, appellant filed a complaint in the

circuit court based on his failure to gain the promotion.

After

a hearing on appellees' motion for summary judgment, the circuit court granted summary judgment on all claims against

Finklestein, and on all claims against the Department except the sex discrimination count. After discovery, the Department The court

renewed its motion on the sex discrimination count. granted the motion. This appeal followed.

Additional facts will be added as necessary to the following discussion. DISCUSSION Appellant contends that the trial court erred in granting summary judgment on all counts of appellant's complaint.

Accordingly, we shall address each count separately. I. Standard Of Review

The EAP is a counseling program that was established "to assist in retaining valuable employees experiencing personal problems that adversely affect their job performance." 3

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Summary judgment is appropriate where there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Md. Rule 2-501. In reviewing the grant of a

motion for summary judgment, we review the trial court's ruling as a matter of law. See Fearnow v. Chesapeake & Potomac Tel.

Co., 104 Md. App. 1, 48, rev'd in part on other grounds, 342 Md. 363 (1996) (1995). Additionally, we review the same information

from the record and decide the same issues of law as the trial court. See Heat & Power Corp. v. Air Prods. & Chems., Inc., 320

Md. 584, 591-92 (1990). II. Discrimination Claims A. Sex Discrimination Claim Appellant contends that the trial court erred in granting appellees summary judgment on his sex discrimination claim under Title VII. See 42 U.S.C.

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