Corneal v. McCurdy

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MAUREEN K. CORNEAL, *

Plaintiff, *

v. * Civil Action No. RDB-19-3393

DEBRA MCCURDY, , *

Defendants.

*

* * * * * * * * * * * * *

MEMORANDUM OPINION

Plaintiff Maureen K. Corneal (“Corneal” or “Plaintiff”), proceeding pro se, brings this

employment discrimination action seeking prospective injunctive relief against Defendants

Debra McCurdy, Kurt Schmoke, Maria Rodriguez, and Michelle Williams (collectively,

“Defendants”), all in their official capacities as officers of Baltimore City Community College

(“BCCC”). Corneal originally asserted unlawful discrimination (Count I) and retaliation

(Count II) based on her age, in violation of the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. §§ 621 et seq. (Compl., ECF No. 1.) On April 20, 2020, this Court

dismissed Corneal’s retaliation claim (Count II) for failure to exhaust administrative remedies.

(ECF No. 16.) Accordingly, the sole remaining count before this Court is Corneal’s claim of

age discrimination (Count I). Corneal has been permitted to engage in discovery to support

her claim. Now pending is Defendants’ Motion for Summary Judgment. (ECF No. 42.) The

parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D.

Md. 2021). For the reasons that follow, Defendants’ Motion for Summary Judgment (ECF

No. 42) is GRANTED, and summary judgment shall be ENTERED in favor of Defendants

on the sole remaining count (age discrimination) of Plaintiff’s Complaint (ECF No. 1).

BACKGROUND

In ruling on a motion for summary judgment, this Court reviews the facts and all

reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550

U.S. 372, 378 (2007); see also Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir.

2013). In 2014, Plaintiff Corneal was hired by Baltimore City Community College (“BCCC”)

as Vice President of Institutional Advancement, Marketing, and Research (“VP IAMR”).

(Corneal Offer Letter, ECF No. 48-2.) Corneal began her employment with BCCC on June

2, 2014, when she was 52 years old. (Id.; Corneal EEOC Charge at 6, ECF No. 48-17 (noting

Corneal’s date of birth as April 7, 1962).) In her role as Vice President of Institutional

Advancement, Marketing, and Research, Corneal supervised a team of approximately fourteen

professionals, two creative agencies, and several vendors. (Corneal Position Description, ECF

No. 48-29.) Corneal also was responsible for five areas of supervision: (1) institutional

advancement; (2) the BCCC Foundation; (3) marketing and communications; (4) community

and alumni relations; and (5) research. (Id.) In addition, five positions reported to Corneal as

VP IAMR: (1) Director of Media and Community Relations; (2) Director of Marketing

Communications; (3) Director of Development; (4) Director of Grant Development; and (5)

Associate Vice President, Institutional Research, Effectiveness and Planning (created in 2015).

(IAMR Organizational Chart, ECF No. 48-10.)

Corneal, an at-will Administrative Professional employee, was also a member of the

president of BCCC’s cabinet and executive staff and she reported directly to the president.

(Corneal Position Description, ECF No. 48-29; Dr. May Declaration ¶ 5, ECF No. 48-32.) In

September 2014, three months after Corneal began her employment, Dr. Gordon May became

president of BCCC. (Dr. May Declaration ¶ 3, ECF No. 48-32.) On July 28, 2015, Dr. May

evaluated Corneal for the 2014-2015 academic/fiscal year and gave her an evaluation of

“Exceeds Standards.” (Corneal 2015 Evaluation, ECF No. 48-4.) Corneal was also voted

“Administrator of the Year” by BCCC in 2015. (Administrator of the Year Award, ECF No.

48-5.)

I. BCCC creates the position of Associate Vice President of Institutional

Research, Effectiveness, and Planning

In 2015, upon recommendation from the Middle States Commission on Higher

Education, BCCC created a position to oversee institutional research, effectiveness, and

planning. (Corneal Dep. Tr. at 29:9-31:12, ECF No. 42-6; Middle States Commission Report

April 2015, ECF No. 42-39.) The new position, Associate Vice President of Institutional

Research, Effectiveness, and Planning would report directly to Corneal as VP of Institutional

Advancement, Marketing, and Research. (Corneal Dep. Tr. at 29:9-30:18, ECF No. 42-6;

IAMR Organizational Chart, ECF No. 48-10.) The Associate VP’s responsibilities included,

inter alia, leadership, management, institutional effectiveness, strategic planning and

assessment, and research. (Associate VP Position Description, ECF No. 42-21.) On July 22,

2015, BCCC hired Dr. Nassim Ebrahimi to fill the Associate VP position. (Ebrahimi

Appointment Letter, ECF No. 42-20.) Dr. Ebrahimi is approximately sixteen years younger

than Plaintiff Corneal. (Compl. ¶ 26, ECF No. 1.)

II. The 2016 Schaefer Center Report

As a state-funded institution, BCCC is accountable to the Maryland General Assembly,

which has most recently scrutinized BCCC’s leadership, finances, and organizational structure

due to declining enrollment. (Corneal Dep. Tr. at 25:9-26:15, ECF No. 42-6; Schaefer Center

Report, ECF No. 42-11.) In November 2015, BCCC hired the Schaefer Center for Public

Policy at the University of Baltimore pursuant to the Maryland General Assembly’s

requirement that BCCC “hire an outside consultant to conduct an operational review of the

college.” (Schaefer Center Report, ECF No. 42-11.)

After interviewing BCCC students and employees and analyzing data from BCCC and

its peer institutions, the Schaefer Center issued its “Joint Chairman’s Report” on August 1,

2016, which made twelve recommendations, including implementing “transformational

leadership,” aligning its budget “with realistic enrollment projections,” engaging in a “top-

down review of positions and staff,” forging “meaningful relationships with key constituencies

and partners,” and rebuilding BCCC’s brand. (Id.) The Schaefer Center Report also found

that BCCC’s finances were unsustainable “in the face of significant enrollment declines” and

that BCCC “had failed to adjust its personnel levels to match the decline in enrollment.” (Id.)

III. Reorganizing BCCC’s Senior Leadership Structure and Corneal’s

Resignation

During the summer of 2016, Dr. May, Dr. Todd Yeary, then-Chair of BCCC’s Board,

and Bryan Perry, then BCCC’s General Counsel, began discussing the reorganization of

BCCC’s senior leadership structure based on the recommendations in the Schaefer Center

Report. (Dr. May Declaration ¶ 13, ECF No. 48-32; Dr. Yeary Decl. ¶ 9, ECF No. 48-34;

June 14, 2016 Email from Dr. Yeary to Mr. Perry attaching Kirstaetter resume, ECF No. 42-

38.) Specifically, they discussed the possibility of hiring Dawn Kirstaetter, who previously

served as Deputy Mayor of Baltimore City for Health, Human Services, and Education, to

work at BCCC. (Id.) They believed that hiring Ms. Kirstaetter would help BCCC to build

strong partnerships with agencies in Baltimore City, including the mayor’s office and Baltimore

City Public Schools. (Dr. May Declaration ¶ 16, ECF No. 48-32; Defs.’ Resp. to Pl.’s First Set

of Interrogatories, No. 5, ECF No. 42-12.) As a result, Dr. May decided to restructure the

Institutional Advancement, Marketing, and Research division, to terminate Plaintiff Corneal’s

employment, and to reassign her duties to Dr. Ebrahimi while aiming to hire Ms. Kirstaetter

to address BCCC’s need to build strategic partnerships. (Id.) Dr. May, Dr. Yeary, and Mr.

Perry believed that Ms. Kirstaetter had stronger current business relationships with people in

Baltimore City agencies than did Corneal. (Id.; Corneal Dep. Tr. at 76:11-77:18, ECF No. 42-

6.)

On August 8, 2016, Dr. May and Human Resources Executive Director Michelle

Williams met with Corneal and told her that BCCC was “going in a different direction,” and

that she “need[ed] to resign or be terminated.” (Corneal Dep. Tr. at 89:11-18, ECF No. 42-6;

Dr. May Declaration ¶ 17, ECF No. 48-32.) Corneal resigned and received a severance

payment of $10,830.00. (Corneal Resignation Letter, ECF No. 48-6; Corneal Release of

Claims, ECF No. 48-7; BCCC Acceptance of Corneal Resignation Letter, ECF No. 48-8.) On

August 19, 2016, Dr. Ebrahimi, then 38 years old, was appointed to the position of Interim

Vice President of Institutional Advancement, Marketing, and Research for a period of six

months, until February 2017. (Ebrahimi Acting Capacity Appointment Letter, ECF No. 48-

9; Ebrahimi Personnel Action Forms, ECF No. 48-39.)

Dr. Ebrahimi’s salary was increased to $120,515 but was still below Corneal’s starting

salary of $138,410. (Id.; Corneal Offer Letter, ECF No. ECF No. 48-2.) In addition to serving

as the Interim Vice President of Institutional Advancement, Marketing, and Research, Dr.

Ebrahimi continued in her role as Associate Vice President of Institutional Research,

Effectiveness, and Planning. (Dr. May Declaration ¶ 20, ECF No. 48-32.)

In November of 2016, Dr. May offered Ms. Kirstaetter the position of Interim Vice

President of Institutional Advancement and Strategic Partnerships, which she began on

December 5, 2016. (Kirstaetter Appointment Letter, ECF No. 42-23.) Funding for this

position came from Corneal’s former position of Vice President of Institutional Advancement,

Marketing, and Research. (Dr. May Declaration ¶ 22, ECF No. 48-32; Kirstaetter Personnel

Action Form, ECF No. 48-40; Corneal Personnel Action Requisition Form, ECF No. 42-26.)

Dr. May renewed Dr. Ebrahimi’s appointment as Interim Vice President of

Institutional Advancement, Marketing, and Research from February 2017 to June 2017.

(Ebrahimi Personnel Action Forms, ECF No. 48-39.) On June 19, 2017, Dr. Ebrahimi

resigned. (Ebrahimi Resignation Letter, ECF No. 48-55.) Also in June of 2017, BCCC

conducted an initial search to fill Corneal’s former position of Vice President of Institutional

Advancement, Marketing, and Research. (Perry Decl. ¶ 21, ECF No. 42-42; Email from Perry

re VP IAMR position, ECF No. 42-45.) However, with Ms. Kirstaetter taking on community

and alumni relations on a permanent basis in July of 2017 and with Dr. Ebrahimi’s resignation,

Corneal’s former position of Vice President of Institutional Advancement, Marketing, and

Research was eliminated. (Dr. May Declaration ¶ 27, ECF No. 48-32; BCCC Baseline and

Progress Report, ECF No. 42-33; Email from Kirstaetter to Perry, ECF No. 42-47.)

IV. Corneal’s EEOC Charge

On December 2, 2016, Plaintiff Corneal filed a charge of age discrimination with the

Equal Employment Opportunity Commission (“EEOC”), alleging that Dr. May discharged

her, then 54 years old, and replaced her with Dr. Ebrahimi, then 38 years old. (EEOC Charge,

ECF No. 48-17.) On July 19, 2019, following a three-year investigation, the EEOC issued a

finding of reasonable cause to believe that BCCC had discriminated against Corneal because

of her age. (EEOC Determination, ECF No. 48-19.) Specifically, the EEOC found that “the

record shows that [Corneal’s] position did not change and was given to a younger individual

following [Corneal’s] discharge.” (Id.) On August 21, 2019, the EEOC denied BCCC’s request

for reconsideration. (EEOC Denial of Reconsideration, ECF No. 48-21.) After conciliation

between BCCC and the EEOC failed, the EEOC issued Corneal a Right to Sue Letter on

August 29, 2019. (EEOC Notice of Failure to Conciliate, ECF No.48-18.) On November

25, 2019, Corneal filed this action pro se, asserting one count of age discrimination (Count I)

and one count of retaliation (Count II) and seeking prospective injunctive relief, including

reinstatement, pursuant to Ex parte Young, 209 U.S. 123 (1908). (Compl., ECF No. 1.) Corneal

filed suit against Dr. Debra McCurdy (BCCC’s current president), Kurt Schmoke (current

chair of BCCC’s Board of Directors), Maria Rodriguez (BCCC’s current General Counsel),

and Michelle Williams (BCCC’s former Executive Director of Human Resources), all in their

official capacities. (Id.)

On February 5, 2020, Defendants filed a Partial Motion to Dismiss, seeking dismissal

of Corneal’s retaliation claim (Count II) for failure to exhaust administrative remedies. (ECF

No. 12.) This Court granted Defendants’ Motion to Dismiss on April 20, 2020, and dismissed

Plaintiff’s claim for retaliation. (ECF No. 16.) On June 3, 2021, Defendants filed the presently

pending Motion for Summary Judgment, seeking entry of judgment in their favor on Plaintiff’s

sole remaining count of age discrimination (Count I). (ECF No. 42.) On August 24, 2021,

Plaintiff filed a document titled “Plaintiff’s Question for Chambers,” posing several legal

questions to the Court. (ECF No. 46.) The Court returned Plaintiff’s document, noting that

the Court cannot provide legal advice and enclosing the Court’s “Instructions for Filing a Civil

Action.” (ECF No. 47.) Plaintiff filed her Opposition to Defendants’ pending Motion on

August 30, 2021. (ECF No. 48.)

STANDARD OF REVIEW

This Court is mindful of its obligation to liberally construe the pleadings of pro se

litigants. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Rule 56 of the Federal Rules of Civil

Procedure provides that a court “shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). A material fact is one that “might affect the outcome of the

suit under the governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue over a

material fact exists “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248. When considering a motion for summary

judgment, a judge’s function is limited to determining whether sufficient evidence exists on a

claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id.

at 249.

In undertaking this inquiry, this Court must consider the facts and all reasonable

inferences in the light most favorable to the nonmoving party. Libertarian Party of Va., 718

F.3d at 312; see also Scott v. Harris, 550 U.S. 372, 378 (2007). This Court “must not weigh

evidence or make credibility determinations.” Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243,

248 (4th Cir. 2015) (citing Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007));

see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015) (explaining

that the trial court may not make credibility determinations at the summary judgment stage).

Indeed, it is the function of the fact-finder to resolve factual disputes, including issues of

witness credibility. See Tolan v. Cotton, 134 S. Ct. 1861, 1866-68 (2014) (per curiam).

However, this Court must also abide by its affirmative obligation to prevent factually

unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79

(4th Cir. 1993). If the evidence presented by the nonmoving party is merely colorable, or is

not significantly probative, summary judgment must be granted. Anderson, 477 U.S. at 249-50.

On the other hand, a party opposing summary judgment must “do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also In re Apex Express Corp., 190 F.3d 624, 633

(4th Cir. 1999). As this Court has previously explained, a “party cannot create a genuine

dispute of material fact through mere speculation or compilation of inferences.” Shin v.

Shalala, 166 F. Supp. 2d 373, 375 (D. Md. 2001) (citations omitted).

ANALYSIS

Plaintiff Corneal’s sole remaining count alleges age discrimination in violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq.1 Corneal seeks

prospective injunctive relief, including reinstatement, pursuant to Ex parte Young, 209 U.S. 123

(1908).

I. Defendants Schmoke, Rodriguez, and Williams

Defendants argue that Defendants Schmoke, Rodriguez, and Williams are entitled to

summary judgment as a matter of law because they do not fall under the exception to Eleventh

Amendment immunity created by Ex parte Young, 209 U.S. 123 (1908). Maryland has not

waived its immunity in federal court to suits brought under the ADEA and the ADEA does

not abrogate Eleventh Amendment sovereign immunity. See McCray v. Maryland Dep’t of

Transp., 741 F.3d 480, 483 (4th Cir. 2014) (citing Bd. of Tr.’s of Univ. of Ala. v. Garrett, 531 U.S.

356, 363-64 (2001)). Eleventh Amendment sovereign immunity also extends to Maryland’s

agencies and Maryland’s agents in their official capacities. Id. Pursuant to the exception

created by Ex parte Young, however, the Eleventh Amendment does not bar suit against state

agents acting in their official capacities when a plaintiff seeks prospective injunctive relief. 209

U.S. 123 (1908); see also Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 476

(4th Cir. 2005).

1 While Plaintiff makes reference in Count I to the Maryland Fair Employment Practices Act (“FEPA”),

Md. Code Ann., State Gov’t § 20-606, it is not clear whether she is also seeking relief under this Maryland

analogue to the ADEA. (See Compl. at 20, ECF No. 1.) In any event, the Maryland Fair Employment Practices

Act adopts the same substantive standards and burden of proof as Title VII, and thus, the ADEA. See Limes

v. American Fed’n of State Cnty. & Mun. Emps. Union (Local 2250), No. PX-19-03225, 2020 WL 1914806 at

*2 (citing Brennan v. Deluxe Corp., 361 F. Supp. 3d 494, 498 n.2 (D. Md. 2019)). Accordingly, even if Plaintiff

asserted a claim under Maryland’s FEPA, it would fail as a matter of law for the same reasons that Plaintiff’s

claim for age discrimination fails as a matter of law under the ADEA.

The Ex parte Young exception, however, “creates only a ‘narrow’ exception to the

Eleventh Amendment.” Just Puppies, Inc. v. Frosh, 438 F. Supp. 3d 448, 484 (D. Md. 2020)

(quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct. 684,

121 L.Ed.2d 605 (1993)). State employees are amenable to suit under this exception if there

exists “‘a special relation’ between the state official being sued and the challenged action.” Id.

(quoting Wright v. North Carolina, 787 F.3d 256, 261-62 (4th Cir. 2015)). This special

relationship exists “where the state official ‘has some connection with the enforcement of the

act.’” Id. (quoting Hutto v. S.C. Ret. Sys., 773 F.3d 536, 550 (4th Cir. 2014) (internal quotations

omitted).

In this case, Plaintiff Corneal alleges that all Defendants “hold the authority to effect

prospective relief…regarding all employment matters.” (Compl. ¶ 10, ECF No. 1.) However,

the specific relief sought by Corneal, reinstatement to her position, is subject to the authority

of BCCC’s President, Defendant Debra McCurdy, only. See Md. Code Ann., Educ. §§ 16-

506(4), (6). Indeed, Plaintiff acknowledges that “Maryland law gives the President of BCCC

the authority to hire employees…and carry out other duties as authorized by the Board of

Trustees.” (Pl.’s Opp’n at 34, ECF No. 48.) It is therefore undisputed that the Defendant

Kurt Schmoke, as the current chair of BCCC’s Board of Directors, the Defendant Maria

Rodriguez as BCCC’s current General Counsel, and the Defendant Michelle Williams as

BCCC’s former Executive Director of Human Resources, do not have authority to reinstate

Corneal to her former position and therefore do not have the requisite “special relation” to

the challenged action. See Just Puppies, Inc., 438 F. Supp. 3d at 485 (dismissing defendants

because they did not fall within the Ex parte Young exception). Accordingly, Defendants

Schmoke, Rodriguez, and Williams are entitled to summary judgment as a matter of law as

they are not proper Defendants under the Ex parte Young exception to Eleventh Amendment

immunity.

II. Plaintiff’s Age Discrimination Claim

Generally speaking, a plaintiff may avert summary judgment and establish a claim of

intentional discrimination using “ordinary principles of proof by any direct or indirect

evidence relevant to and sufficiently probative of the issue.” EEOC v. Western Elec. Co., Inc.,

713 F.2d 1011, 1014 (4th Cir. 1983). Alternatively, a plaintiff may proceed under the proof

scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its progeny,

under which the employee, after establishing a prima facie case of discrimination, must

demonstrate that the employer’s proffered nondiscriminatory reason for the challenged

employment action is in fact a pretext for discrimination. Id. Although McDonnell Douglas was

a Title VII case, the United States Court of Appeals for the Fourth Circuit has consistently

applied the McDonnell Douglas burden-shifting test to claims brought under

the ADEA. See Mitchell v. Data General Corp., 12 F.3d 1310, 1314 (4th Cir. 1993).

In this case, the Plaintiff has not presented any direct evidence of discrimination.

Indeed, Plaintiff testified that no one at BCCC ever mentioned her age or that she was being

asked to resign because of her age. (Corneal Dep. Tr. at 92:20-22, 120:14-21, 121:3-4, ECF

No. 42-6.) Therefore, this Court must assess her claims under the McDonnell Douglas burden-

shifting test. Under McDonnell Douglas test, a plaintiff must first present enough evidence to

make a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,

142-43 (2000).

To establish a prima facie case, the plaintiff must show that she: (1) is a member of a

protected class, i.e., is at least 40 years old; (2) suffered an adverse employment action; (3) was

at the time performing her job duties at a level that met her employer’s legitimate expectations;

and (4) the position remained open or was filled by a similarly qualified applicant outside the

protected class. See Hill v. Lockhead Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir.

2004). If the plaintiff is able to establish a prima facie case, the burden shifts to the defendant

to produce evidence that the adverse employment actions were taken against the plaintiff “for

a legitimate, nondiscriminatory reason.” Reeves, 530 U.S. at 142 (citing Tex. Dep’t Cmty. Affairs

v. Burdine, 450 U.S. 248, 254 (1981)). Finally, the plaintiff is “afforded the ‘opportunity to

prove by a preponderance of evidence that the legitimate reasons offered by the defendant

were not its true reasons, but were a pretext for discrimination.’” Id. (quoting Burdine, 450 U.S.

at 253).

The parties do not dispute that Plaintiff has established the first three elements of a

prima facie case of age discrimination: she is a member of a protected class based upon her age

of fifty-four; she was performing her duties as Vice President of Institutional Advancement,

Marketing, and Research at a level that met her employer’s legitimate expectations; and she

was asked to resign or be terminated by BCCC’s then-president Dr. Gordon May.

However, Defendants argue that Corneal cannot satisfy the fourth element of her prima

facie case of age discrimination because she was not permanently replaced by a substantially

younger employee. Corneal argues that she has proven this element of the prima facie case

because Dr. Ebrahimi, then 38 years old, was appointed to the position of Interim Vice

President of Institutional Advancement, Marketing, and Research. (Pl.’s Opp’n at 12-14, ECF

No. 48.) This fact alone is insufficient, as the record shows that Dr. Ebrahimi did not replace

Corneal in her position but rather took on the responsibilities of Corneal’s position on a

temporary basis while BCCC underwent a restructuring of the Institutional Advancement,

Marketing, and Research division. (See Ebrahimi Acting Capacity Appointment Letter, ECF

No. 48-9; Ebrahimi Personnel Action Forms, ECF No. 48-39; Dr. May Declaration ¶ 20, ECF

No. 48-32.)

“A person is replaced only when another employee is hired or reassigned to perform

the plaintiff’s duties.” Hudock v. Kent Cty. Bd. Of Educ., No. CCB-14-2258, 2015 WL 1198712,

at *14 (D. Md. Mar. 16, 2015) (citing Grosjean, 349 F.3d at 336)). An individual “is not replaced

when another employee is assigned to perform the plaintiff’s duties in addition to other duties,

or when the work is redistributed among other existing employees already performing related

work.” Grosjean v. First Energy Corp., 349 F.3d 332, 336 (6th Cir. 2003). Having other

employees present to handle various tasks a plaintiff may have performed does not show that

an individual was “replaced.” Transamerica Ins. Fin. Corp., 854 F. Supp. 393, 398 (D. Md. 1993),

aff’d, 27 F.3d 563 (4th Cir. 1994).

The Plaintiff has not shown that one individual person was hired or took over all of

her duties. Instead, the undisputed record reflects that, due to restructuring recommended by

the Schaefer Center Report, Dr. May reorganized the duties and responsibilities of Corneal’s

position. (Dr. May Declaration ¶ 13, ECF No. 48-32; Dr. Yeary Decl. ¶ 9, ECF No. 48-34;

June 14, 2016 Email from Dr. Yeary to Mr. Perry attaching Kirstaetter resume, ECF No. 42-

38.) As a result, Dr. Ebrahimi and Ms. Kirstaetter shared Corneal’s former responsibilities

for less than a year as Interim Vice Presidents before Dr. Ebrahimi herself resigned and Ms.

Kirstaetter took on a new Vice President role. (Ebrahimi Acting Capacity Appointment Letter,

ECF No. 48-9; Ebrahimi Personnel Action Forms, ECF No. 48-39; Dr. May Declaration ¶

22, ECF No. 48-32; Kirstaetter Appointment Letter, ECF No. 42-23; Kirstaetter Personnel

Action Form, ECF No. 48-40; Corneal Personnel Action Requisition Form, ECF No. 42-26.)

Indeed, by August of 2017, Corneal’s former position of Vice President of Institutional

Advancement, Marketing, and Research was eliminated altogether. (Dr. May Declaration ¶

27, ECF No. 48-32; BCCC Baseline and Progress Report, ECF No. 42-33; Email from

Kirstaetter to Perry, ECF No. 42-47.) Accordingly, it is undisputed that Corneal was not

replaced by someone substantially younger than she because that position was restructured

and ultimately eliminated.

Whether a plaintiff seeks to prove discrimination on the basis of direct evidence, or

through the McDonell Douglas framework, it remains the plaintiff’s ultimate burden to prove

that her age was the but-for cause of the alleged adverse employment action. Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167 (2009). Corneal relies only on the EEOC’s Determination finding age

discrimination and that “the record shows that [Corneal’s] position did not change and was

given to a younger individual following [Corneal’s] discharge.” (EEOC Determination, ECF

No. 48-19.) However, the Fourth Circuit and this Court have consistently held that

“conclusory findings by the EEOC ‘are not sufficiently probative to create a genuine issue of

material fact.’” Toney v. Powercon Corp., Civil Case No. SAG-19-0405, 2020 WL 758242, at *11

(D. Md. Feb. 14, 2020) (quoting Goldberg v. B. Green and Co., Inc., 836 F.2d 845, 848 (4th Cir.

1988)). Indeed, the EEOC Determination in this case provides no factual basis for the

EEOC’s finding, rendering it of little probative value. See id. (granting summary judgment for

defendant, noting that EEOC determination did not describe “the information obtained

during the [EEOC’s] investigation,” leaving the Court “utterly unable to evaluate the factual

basis for the EEOC’s finding”). Consequently, Corneal has not generated any genuine issues

of material fact with respect to her age discrimination claim, and it fails as a matter of law.

III. Pretext

Alternatively, even if Corneal could establish a prima facie case of discrimination, she

cannot prevail under this claim because Defendants have put forward legitimate,

nondiscriminatory reasons for their action, and Corneal has not carried her burden of showing

such reasons were mere pretext for discrimination. In fact, Corneal has made no effort to

establish that any of Defendants’ actions were in any way discriminatory.

Defendants have presented clear evidence that: Dr. May asked Corneal to resign

because BCCC was going in “another direction,” which involved the reorganization of the

leadership structure and the redistribution of the funds for Corneal’s position to create

different Vice President positions. (Corneal Dep. Tr. at 89:11-18, ECF No. 42-6; Dr. May

Declaration ¶ 17, ECF No. 48-32; Corneal Resignation Letter, ECF No. 48-6; Corneal Release

of Claims, ECF No. 48-7; BCCC Acceptance of Corneal Resignation Letter, ECF No. 48-8.)

Based on the recommendations in the Schaefer Center Report, Dr. May, Dr. Yeary and Bryan

Perry discussed the possibility of hiring Dawn Kirstaetter, who previously served as Deputy

Mayor of Baltimore City for Health, Human Services, and Education, to work at BCCC

because they believed that hiring Ms. Kirstaetter would help BCCC to build strong

partnerships with agencies in Baltimore City, including the mayor’s office and Baltimore City

Public Schools. (Dr. May Declaration ¶¶ 13, 16 ECF No. 48-32; Dr. Yeary Decl. ¶ 9, ECF

No. 48-34; June 14, 2016 Email from Dr. Yeary to Mr. Perry attaching Kirstaetter resume,

ECF No. 42-38; Defs.’ Resp. to Pl.’s First Set of Interrogatories, No. 5, ECF No. 42-12.) Dr.

May decided to restructure the Institutional Advancement, Marketing, and Research division,

to terminate Plaintiff Corneal’s employment, and to reassign her duties to Dr. Ebrahimi while

aiming to hire Ms. Kirstaetter to address BCCC’s need to build strategic partnerships. (Id.)

Dr. May, Dr. Yeary, and Mr. Perry believed that Ms. Kirstaetter had stronger current business

relationships with people in Baltimore City agencies than did Corneal. (Id.) Corneal testified

that her business relationships with Baltimore City agencies in the 1990s had not been

maintained after 1999 (Corneal Dep. Tr. at 76:11-77:18, ECF No. 42-6); and with Ms.

Kirstaetter taking on community and alumni relations on a permanent basis in July of 2017

and with Dr. Ebrahimi’s resignation, Corneal’s former position of Vice President of

Institutional Advancement, Marketing, and Research was eliminated. (Dr. May Declaration

¶ 27, ECF No. 48-32; BCCC Baseline and Progress Report, ECF No. 42-33; Email from

Kirstaetter to Perry, ECF No. 42-47.)

In the face of these reasons proffered by Defendants, Corneal makes no showing that

Defendants’ explanations are “‘unworthy of credence’” nor does she “offer[ ] other forms of

circumstantial evidence sufficiently probative of” the alleged discrimination. See Mereish v.

Walker, 359 F.3d 330, 336 (4th Cir. 2004) (internal quotations and citations omitted). Indeed,

the Fourth Circuit has “recognized the importance of giving an employer the latitude and

autonomy to make business decisions, including workplace reorganization, as long as the

employer does not violate the ADEA.” Henson v. Liggett Grp., Inc., 61 F.3d 270, 277 (4th Cir.

1995) (citing EEOC v. Clay Printing, Co., 955 F.2d 936, 946 (4th Cir. 1992)). There is simply

no evidence in this case suggesting that Defendants terminated Corneal because of her age in

violation of the ADEA. Accordingly, even if Corneal could establish her prima facie case for

age discrimination, which she cannot, she also cannot establish that the Defendants’ provided

reasons for their actions were pretextual. Her claim for age discrimination fails as a matter of

law and summary judgment shall be entered in favor of all the Defendants.

CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment (ECF No. 42)

is GRANTED, and summary judgment shall be ENTERED in favor of Defendants on the

sole remaining count (age discrimination) of Plaintiff’s Complaint (ECF No. 1).

A Separate Order follows.

Dated: September 15, 2021

_______/s/________________

Richard D. Bennett

United States District Judge