Petition for Writ of Certiorari — Isaac Mulamba, Petitioner v. Board of Education of Baltimore County

APPENDIX TABLE OF CONTENTS

Appendix A: Appellate Court of Maryland,

Order, January 27, 2025 ............0000005.

Appendix B: Appellate Court of Maryland,

Opinion, December 13, 2024 .................

Appendix C: Circuit Court for Baltimore

County, Memorandum Opinion and Order,

September 29, 2023 ............ cece eee eee

Appendix C: Supreme Court of Maryland,

Notice of Order, April 25, 2025 ..............

APPENDIX A

IN THE APPELLATE COURT OF MARYLAND

E-FILE

Rachel Dombrowski, Clerk

Appellate Court of Maryland

1/27/2025 10:01 AM

ISAAC MULAMBA,

Appellant,

Vv.

THE BOARD OF EDUCATION OF

BALTIMORE COUNTY,

Appellee.

No. 1656, September Term 2023

MDEC: ACM-REG-1656-2023

(Cir. Ct. No. C-03-CV-23-001611)

KAKA KKAEKE EEK

ORDER

On December 26, 2024, the appellant filed his

Motion for Reconsideration En Banc." The Panel that

decided the appeal, Judges Shaw, Ripken, and Glenn

T. Harrell., Jr., reviewed the request for

reconsideration and the request for en banc review was

presented to the full Court for consideration. The

la

request for en banc review failed to garner the

concurrence of a majority of the incumbent judges of

the entire Court as required pursuant to Maryland

Code Ann., Cts. & Jud. Proc. § 1-403(c).

Upon consideration of the foregoing, it is, this

27th day of January 2025,

ORDERED that the appellant's "Motion for

Reconsideration En Banc" is denied, and it is further

ORDERED that the Clerk of this Court shall

issue the Mandate forthwith.

Judge's Signature Appears on Original Order

/s/

MELANIE M. SHAW, Judge

2a

APPENDIX B

Circuit Court for Baltimore County

Case No. C-03-CV-23-001611

UNREPORTED’

IN THE APPELLATE COURT OF MARYLAND

No. 1656

September Term, 2023

ISAAC MULAMBA

v.

THE BOARD OF EDUCATION

OF BALTIMORE COUNTY

Shaw,

Ripken,

Harrell, Glenn T., Jr.

(Senior Judge, Specially Assigned),

Jd.

Opinion by Shaw, J.

Filed: December 13, 2024

” ‘This is an unreported opinion. This opinion may not be

cited as precedent within the rule of stare decisis. It may be cited

for its persuasive value only if the citation conforms to Rule 1-

104(a)(2)(B).

3a

Appellant, Isaac Mulamba, appeals an order of

the Circuit Court for Baltimore County granting a

motion to dismiss filed by Appellee, the Board of

Education of Baltimore County. In 2023, Appellant

filed a civil claim against Appellee, alleging that while

employed with the Baltimore County Public Schools

(“BCPS”), he had been subjected to employment

discrimination based on race, national origin, sex, and

age; workplace harassment; retaliation; negligent

hiring; abusive/constructive discharge; intentional

infliction of emotional distress; and abuse of process.

Following a hearing, the court issued a memorandum

opinion, finding that Appellant failed to state a claim

upon which relief could be granted. Appellant timely

noted this appeal. Appellant’s questions presented

have been rephrased’ as follows:

1. Did the circuit court err in dismissing

Appellant's employment discrimination claim

based on race, national origin, sex, and age

discrimination?

2. Did the circuit court err in dismissing

Appellant’s original questions presented included “i.

Whether the Appellee breached laws to the detriment of the

Appellant ? (1, II, IV, V, VI” and “ii. Whether the Appellant stated

a prima facie case of retaliation based on constructive

termination? (ITI, VII, VITI).” Appellant labeled Counts I-VI as

the following: Count I The Breach of a Legal Duty, Count II

Intentional Misrepresentation, Count III Discrimination and

Retaliation, Count IV Breach of Contract, Count V Liability for

Intentional Torts, Count VI Negligent Misrepresentation: Breach

of an Implied Contract and Gross Negligence, Count VII Hostile

Work Environment, and Count VIII Constructive Termination.

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Appellant’s retaliation claim?

3. Did the circuit court err in dismissing

Appellant’s workplace harassment claim?

4, Did the circuit court err in dismissing

Appellant’s constructive termination claim?

5. Did the circuit court err in dismissing

Appellant’s intentional infliction of emotional

distress claim?

We hold that the circuit court did not err, and

accordingly, we affirm the judgments.

Appellant, in his brief, requests that we review

several additional issues not decided by the circuit

court, including Count I The Breach of a Legal Duty,

Count IJ Intentional Misrepresentation, Count IV

Breach of Contract, Count V Liability for Intentional

Torts, and Count VI Negligent Misrepresentation:

Breach of an Implied Contract and Gross Negligence.

Maryland Rule 8-131(a) provides that, on appeal, we

will not ordinarily “decide any other issue unless it

plainly appears by the record to have been raised in or

decided by the trial court.” Md. Rule 8-131(a); see

DiCicco v. Balt. Cnty., 2832 Md. App. 218, 225 (2017).

Because the circuit court was not asked to and did not

make any rulings on Counts I, II, IV, V, and VI, we

decline to consider the additional issues.

In his brief, Appellant, also, did not address the

circuit court’s dismissal of his negligent hiring or

abuse of process claims. He, further, did not address

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his claim involving judicial impartiality, his alleged

right to counsel, or his challenges to the discoveryrelated rulings in the questions presented section of

his brief. Thus, in accordance with Maryland Rule 8-

504(a)(3), we will not address arguments that

Appellant failed to “set forth in the ‘Questions

Presented’ section” of his brief. Peterson v. Evapco,

Inc., 238 Md. App. 1, 62 (2018) (quoting Green v. N.

Arundel Hosp. Ass’n, Inc., 126 Md. App. 394, 426

(1999), aff'd, 366 Md. 597 (2001)).

BACKGROUND

Appellant, a man of Central African descent in

his forties”, accepted a job with Appellee in January

2022, within the Department of Special Education as

a data analyst. Because he resided in Fairfax, Virginia,

and his office space was located in Towson, Maryland,

he negotiated a work-from-home agreement with the

former Executive Director of Special Education.

Appellant was allowed to work three days a week

remotely and was assigned an office space. Sometime

during his employment, Appellant offered to “share his

office space with” Catherine Armstrong, a Caucasian

woman, who worked part-time as an administrative

assistant.

In June 2022, the Executive Director of Special

The record presents differing statements regarding

Appellant’s age. The circuit court stated, in its opinion granting

the motion to dismiss, that Appellant is in his sixties. Appellant,

however, states that he is in his forties.

6a

Education resigned and Allison Myers, a Caucasian

woman, became Appellant’s supervisor. She scheduled

an online meeting with Appellant and Conya Bailey,

her Chief Assistant, an African American woman, to

discuss the office’s post-COVID-19 workplace policy

and his return to the office. Appellant was also advised

that his workspace had been reassigned to Ms.

Armstrong and that he would be moved to a cubicle.

Appellant disagreed with a return to the office, stating

that his duties did not need to be completed from an

office, and he had a long commute to the BCPS office

location. Appellant also opposed the reassignment of

his workspace. Appellant alleged that his supervisor,

Ms. Myers, was dismissive of him and stated that she

told him that she preferred that another data analyst,

Dan Klinger, a Caucasian male, perform her data

requests. Under previous management, Appellant’s

role as a data manager included monitoring data

between BCPS and the Maryland State Department of

Education (“MSDE”). Appellant's “employment

primarily focused on comprehending the MSDE’s

business rules, which included state formulas. This

knowledge aided in monitoring performance metrics,

supporting program evaluations, and implanting

corrective actions.” This responsibility also provided

Appellant with “special access privileges to certain

server spaces.” Appellant claimed that these duties

were based on an interest he shared with his former

supervisor regarding the importance of such

information in decision-making. For example,

Appellant would track the suspension rate among

minorities in BCPS schools. However, when Appellant

“inquired from the team about how MSDE acquired

data from BCPS, no one showed any interest.”

7a

Appellant asserted in his complaint that “[t]he

previous Executive Director was the only individual

who expressed concern about [MSDE] outcomes.”

Appellant described Ms. Myers as a “typical

bureaucrat” who wanted to “maintain the status quo”

and did not take an interest in the MSDE data once

she became Executive Director. He concluded that the

meeting was an attempt “to assert female

power/authority in the predominantly female

workplace” and a result of Ms. Myers’ preference for

white employees.

There was no immediate return to work for

employees as the office space was not ready. On

August 12, 2022, Ms. Bailey sent a departmental email

to employees advising them to continue to work

remotely until further notice. Neither party indicates

in the record exactly when Appellee requested its

employees to return to the office. On August 25, 2022,

Ms. Bailey contacted Appellant, asking why he had not

been reporting to work. He responded that he was

waiting for confirmation that the office was ready for

in-person work. He was then directed to return to

work. Ms. Myers also mailed letters via certified mail

to Appellant’s residence demanding that he return to

work. In response, Appellant sent a cease and desist

letter to Ms. Myers asking her to communicate with

him only through email.

On August 29, 2022, Appellant returned to the

office and sat in his previously designated office. Ms.

Armstrong had an exchange with Appellant regarding

the space and she later returned with Ms. Myers, Ms.

Bailey, and Ms. Claudine Daniel, an administrative

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assistant who was an African American woman. The

four women demanded that Appellant move to his

cubicle. Appellant alleges that “[a]ls the commotion

continued, several people began to emerge from their

offices to see what was happening.” Appellant refused

to move and remained there for the rest of the day. He

described feeling deeply embarrassed by the

interaction and that he did not leave his office that day

for lunch. Appellant portrayed the incident as “a total

display of collective and intimidating female power[,]”

and he informed the women that he would be reporting

the incident to the internal Equal Employment

Opportunity Office (“EEO Office’). The next day,

Appellant found his belongings had been removed from

the office and placed in his assigned cubicle. Appellant

reported the incident to BCPS’ EEO Office on

September 2, 2022.

Ms. Myers scheduled an in-person meeting with

Appellant for September 6, 2022. Appellant was

waiting for the meeting in his cubicle when he

overheard Ms. Daniel state, “This African guy wants

an office! Would he have an office in Africa? He

already has a job, he should be content! Instead, he

wants an office on the top.” The comment was followed

by laughter. During the meeting, Ms. Myers informed

Appellant that she would be conducting a performance

evaluation. Appellant informed Ms. Myers that he had

filed a complaint with BCPS’ EEO Office.

On September 12, 2022, Ms. Myers emailed

Appellant to inform him that she had scheduled a

disciplinary meeting for insubordination for the

following day. She also informed Appellant that he had

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the right to bring union representation with him to the

meeting. Appellant refused to attend the meeting,

stating that he would not meet with anyone until he

obtained an attorney of his choosing. On November 11,

2022, Appellant resigned, contending that he had no

choice because of the hostile work environment.

Following his resignation, Appellant alleges that

BCPS provided a negative reference to a prospective

employer. A BCPS Director, Dr. Monica Hetrick,

contacted Appellant regarding a career opportunity

within BCPS’ Office of Performance Management.

Appellant alleges that Dr. Hetrick agreed to call Ms.

Myers, “but she never reached back with an update.”

Appellant indicated that he also applied for a data

analyst position with Baltimore City Public Schools in

its Office of Human Capital. Appellant, after the

interview process, was notified by that office that he

was not “a fit for the role[.]”

On April 19, 2023, Appellant filed a complaint

in the Circuit Court for Baltimore County, which was

amended on May 22, 2023, and July 11, 2023. Appellee

did not file an answer to the amended complaint, and

on August 4, 2023, Appellee filed a motion to dismiss.

Appellant responded with an answer and a request for

244 admissions which were directed at Appellee and

certain non-parties. Appellee filed a motion requesting

that the court either grant a protective order, stay

discovery until the motion to dismiss was ruled upon,

or limit the number of requests for admission. The

court granted the request for a protective order, in

part, holding that the requests for admission from nonparties were not permitted under Maryland Rule 2-

10a

424(a), directing Appellee to respond to the requests

for admission within sixty days, and ruling that all

other discovery be stayed until the court decided on

the motion to dismiss. On August 22, 2023, Appellant

submitted a line accusing the court of not being

impartial and stating that the sixty-day deadline was

an attempt by the court to collaborate against him.

Appellant also preemptively asserted that the court

would not fairly evaluate Appellee’s motion to dismiss.

On September 4, 2023, Appellant filed a motion for

summary judgment which was denied on September

25, 2023.

The circuit court held a hearing on Appellee’s

motion to dismiss on September 18, 2023, and, on

September 29, 2023, the court issued a memorandum

opinion, granting Appellee’s motion to dismiss

Appellant’s claims. Because the court granted the

motion to dismiss four days after it denied Appellant’s

motion for summary judgment, Appellant alleges on

appeal that there was “a potential coordination

between the judges for a predetermined outcome”

during the process of those rulings. Appellant filed this

timely appeal.

STANDARD OF REVIEW

On appeal, “[t]he standard for reviewing the

grant of a motion to dismiss is whether the trial court

was legally correct.” Schisler v. State, 177 Md. App.

731, 742 (2007). A trial court may dismiss a complaint

if it fails to state a claim upon which relief can be

granted. Id. The central inquiry is whether the facts

within the complaint created a legally sufficient cause

lla

of action. Id. at 743. This Court will “presume the

truth of all wellpleaded facts in the complaint, along

with any reasonable inferences derived therefrom.” Id.

(quoting Fioretti v. Md. State Bd. of Dental Exam’s,

351 Md. 66, 72 (1998)). This standard applies equally

to an amended complaint. Id.

DISCUSSION

I. The circuit court did not err in dismissing

Appellant’s claim of discrimination on the

basis of race, age, sex, and national origin.

Appellant argues that he was discriminated

against on the following grounds: racebased

discrimination under Title VII of the Civil Rights Act

of 1964 (“Title VII”), agebased discrimination under

the Age Discrimination in Employment Act (“ADEA”),

age and race-based discrimination under the Maryland

Fair Employment Practices Act (““MFEPA”), genderbased discrimination under Title VII and MFEPA, as

well as national origin-based discrimination under

Title VII and MFEPA. Appellant contends that when

Ms. Myers revoked his remote work status, he was

discriminated against. He further argues that

“reassigning a high-ranking employee’s office to a lowranking employee [is] considered a form of a

demotion.” He asserts that he experienced

discrimination when Ms. Myers “omitted him from the

department’s website, which only featured four female

employees.” In terms of national origin-based

discrimination, he alleges that Ms. Daniel

discriminated against him when he overheard her

comment referring to him as an “African guy[.]” He

12a

also alleges that Ms. Myers’ stated reliance on Mr.

Klinger for data requests caused him to lose prestige

and established her preference for white employees.

Appellee argues the court did not err. Appellee

contends that Appellant did not assert a prima facie

case of discrimination based on race, age, sex, and

national origin. While Appellee does not dispute that

Appellant is a member of multiple protected classes,

Appellee contends that Appellant’s work performance

was unsatisfactory, an adverse employment action did

not occur, and there were no facts alleged to establish

different treatment for those outside the protected

classes.

According to Title VII, employers are prohibited

from “discriminat[ing] against any individual with

respect to [an employee’s] compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national

origin[.]” 42 U.S.C.A. § 2000e-2(a). The MFEPA

contains nearly identical language to Title VII. Md.

Code Ann., State Gov't § 20-606 (2021 Repl. Vol., 2022

Supp.). We are permitted to “interpret the MFEPA

consistent with its federal corollary, absent ‘legislative

intent to the contrary[.]” Doe v. Cath. Relief Servs.,

484 Md. 640, 680-81 (2023) (quoting Chappell v. S.

Md. Hosp., Inc., 320 Md. 483, 494 (1990)). Maryland

courts have thus applied federal frameworks in

evaluating employment discrimination claims under

both federal and state discrimination laws. See Dobkin

v. Univ. of Baltimore Sch. of L., 210 Md. App. 580,

592-98 (2013) (applying a federal framework to an

MFEPA claim based on age discrimination and

18a

collecting Maryland cases that have similarly applied

federal frameworks to discrimination claims). Federal

cases involving Title VII claims are also “persuasive

authority in interpreting Maryland employment

discrimination laws, including those that prohibit

retaliation.” Romeka v. RadAmerica I, LLC, 254 Md.

App. 414, 442, cert. granted, 481 Md. 1 (2022), and

aff'd, 485 Md. 307 (2023). Accordingly, we refer to

federal frameworks and cases throughout this opinion

in assessing Appellant’s claims that involve Title VII

and Maryland discrimination laws.

In order to establish a prima facie

discrimination claim when direct evidence of

discrimination is unavailable, a plaintiff must

establish the following elements: (1) membership in a

protected class; (2) satisfactory job performance; (3)

adverse employment action; and (4) different

treatment from similarly situated employees outside

of the protected class. Coleman v. Md. Ct. of Appeals,

626 F. 3d 187, 190 (4th Cir. 2010); see also Gaines v.

McDonald, 152 F. Supp. 3d 464, 470 (M.D.N.C. 2015)

(“Direct evidence is evidence that the employer

announced, admitted, or otherwise unmistakably

indicated that the forbidden consideration was a

determining factor.”) (Cleaned up). We conclude that

the evidence of discrimination, in this case, is indirect

as Appellee has not directly indicated that its

treatment of Appellant is a result of his membership

in a protected class. Neither party disputes that

Appellant is a member of multiple protected classes as

a man of Central African descent in his forties.

Satisfactory job performance is defined as

14a

meeting the “employer's legitimate expectations at the

time of the adverse employment action.” Giles v. Nat'l

R.R. Passenger Corp., 59 F.4th 696, 704 (4th Cir.

2023). Central to this inquiry is the perspective of the

“decision maker . . . not the self-assessment of the

plaintiff.” Id. (first quoting Evans v. Techs. Apps. &

Serv. Co., 80 F.3d 954, 960-61; then quoting Smith v.

Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)). In Giles,

the plaintiff engaged in several acts of

insubordination, such as refusing to complete his

supervisor's requests, refusing to attend mandatory

briefings, and arguing with his supervisor in front of

customers. Jd. The Fourth Circuit.determined that

such acts were insubordinate according to the

employer’s policies and concluded that the satisfactory

job performance prong was unsatisfied. Id.

In the case of Nerenberg v. RICA of S. Md., 131

Md. App. 646 (2000), we upheld the grant of an

employer's motion for summary judgment in a

disability discrimination case. The appellant worked at

a pediatric psychiatric facility where she supervised

adolescents. Id. at 655. Her supervisors cited a number

of concerns regarding her job performance, including

failing “to supervise the children more closely” after

warnings, becoming “overly involved with the children

she supervised,” fainting spells while supervising the

children, “difficulty getting some of the more willful

clients to cooperate[,]” arguments with her coworkers,

encouraging children to participate in games they felt

uncomfortable with, and showing inappropriate movies

to the children. Jd. at 656~59. This Court stated that

“[t]he employer’s assessment and stated opinions

about the discrimination plaintiff, and not the

15a

conflicting and often speculative opinions of the

employee, her co-workers, or even her former

supervisor, are relevant in determining the legitimacy

of a termination decision.” Id. at 678. We upheld the

grant of the motion for summary judgment, finding

that the appellant did not meet her job requirements.

Id. at 679-80.

In the case of Burnett v. BJ’s Wholesale Club,

722 F. Supp. 3d 566 (D. Md. 2024), the federal district

court examined whether an employee had satisfied his

employer’s expectations of employment in the context

of a motion for summary judgment. The court

explained that “[iJt is undisputed that [the] [p]laintiff

was frequently absent from work, without excuse, in

the days leading up to his termination. These

unexcused absences, on days when Plaintiff clocked

into work, were in violation of BJ’s policies[.]” Id. at

576. As a result, the court found that “no reasonable

jury could conclude that the [p]laintiffs ‘performance

at the time of the discharge met the legitimate

expectations of his employer.” Jd. (quoting Rubino v.

New Acton Mobile Inds., LLC, 44 F. Supp. 3d 616, 6238

(D. Md. 2014)).

Here, the trial court dismissed Appellant’s

employment discrimination claim because “[a]lthough

the Second Amended complaint also states that the

Plaintiff was completing his required tasks, it is the

decision maker’s perception, not his self-assessment

that is relevant .... Therefore, this element is not

sufficiently alleged.” We agree. In Appellant’s amended

complaint, he plainly indicated that he engaged in

several insubordinate acts, including refusing to report

16a

to work in accordance with the office’s in-person policy

after multiple requests, refusing to move to his

reassigned workspace, and failing to attend a

disciplinary meeting. Appellant’s perception and selfassessment, however, that he had _ satisfactorily

performed his job duties from home is not controlling.

Instead, Appellee’s categorization of Appellant’s work

behavior as insubordinate predominates. Based on the

facts asserted in the complaint, Appellant did not

establish the element of satisfactory job performance.

Appellant also did not establish a prima facie

case that he experienced an adverse employment

action. An adverse employment action is a

discriminatory act on the part of the employer that

adversely affects the plaintiffs “compensation, terms,

conditions, or privileges of employment.” Muldrow v.

City of St. Louts, Missouri, 601 U.S. 346, 354 (2024).

The plaintiff must show that the adverse employment

action brought about “some harm respecting an

identifiable term or condition of employment.” Jd. “The

‘terms [or] conditions’ phrase, we have made clear, is

not used ‘in the narrow contractual sense’; it covers

more than the ‘economic or tangible.” Id. (quoting

Oncale v. Sundowner Offshore Services, Inc., 523 U.S.

75, 78 (1998) and Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57, 64 (1986)).

The trial court, in the present case, found that

Appellant failed to establish the third element, stating

that “having some work responsibilities given to

another employee; being reassigned from an office toa

cubicle; being ‘yelled’ and ‘screamed’ at; being excluded

from a department website photo which featured four

17a

women; and being talked about by an employee....

are not considered adverse employment actions.” We

agree that such acts may have made Appellant

uncomfortable and/or dissatisfied, however, he did not

allege or aver in his complaint a discriminatory act

that adversely affected “compensation, terms,

conditions, or privileges of employment.” As we see it,

Appellant’s claims do not demonstrate that he

experienced some harm regarding his employment

status.

Turning to the fourth element, the trial court

found that Appellant failed to establish that “similarly

situated employees outside the relevant protected

classes received more favorable treatment.” We agree

with the court’s ruling. As we can discern from the

complaint, the new in-person policy applied to all

employees, and did not treat Appellant differently.

While the return to work policy may have

inconvenienced Appellant, it was a measure, developed

at the end of the pandemic, to return all persons to the

office. As for the office reassignment, Appellee

communicated to Appellant that this change was the

result of “his office being assigned to another

department[.]” In his complaint, Appellant did not

provide any facts pertaining to Ms. Daniel’s favorable

treatment of other similarly situated employees.

Appellant also claims that, under the prior

director, he managed certain MSDE data that the new

director did not want or request. He asserts that he

lost this responsibility due to Ms. Myers’ reliance on

Mr. Klinger. He asserts that the approach taken by the

new director was because she had a “typical

18a

bureaucrat” approach to management which was

different than the previous director. Appellant averred

that these circumstances establish that he was

subjected to an adverse employment action. However,

he did not allege that similarly situated employees

outside of the protected class received different

treatment under his director or as a result of her

management style.

In order to establish a prima facie case,

Appellant was required to aver four elements and he

did not. We hold, therefore, that the circuit court did

not err in dismissing his employment discrimination

claims. The facts, as alleged, did not create a legally

sufficient cause of action.

II. The court did not err in dismissing

Appellant’s retaliation claim.

Appellant argues that Appellee retaliated

against him after he filed an internal complaint with

BCPS’ EEO Office. Appellant claims he experienced

retaliation when Ms. Myers “announced she would

perform his performance review” and “arranged a

disciplinary meeting for him on _ grounds of

insubordination.” Appellant argues that Ms. Myers

excluded him “from various departmental meetings”

and “Ms. Myers and Ms. Bailey limited

communication” with him. Appellant also contends

that Appellee retaliated against him when it “provided

a negative reference for [him] and he was never

selected for employment by another school district.”

Appellant alleges that “[t]he prospective employer had

made promises of employment but failed to follow

19a

through; the plaintiff was amply qualified for the role

yet they chose to continue searching for another

candidate.” Appellant further argues that he was

retaliated against when Ms. Myers “stripped

[Appellant] of some of his responsibilities” in his initial

meeting with her.

Appellee argues that Appellant failed to allege

a cognizable retaliation claim because none of the

aforementioned events are considered materially

adverse employment actions. Appellee acknowledges

that a negative reference might be considered a

materially adverse employment action. However, it

contends that Appellant did not plead with specificity

the facts establishing that Appellee provided a

negative reference.

An employee bearing the burden of establishing

a prime facie case for retaliation must allege the

following: “(1) he/she engaged in a protected activity,

(2) the employer took an adverse employment action

against him/her, and (8) the adverse employment

action was causally connected to the protected

activity.” Muse-Ariyoh v. Bd. Of Educ. Of Prince

George’s Cnty., 235 Md. App. 221, 244 (2017). As

previously noted, this Court is permitted to refer to

federal cases in assessing Appellant’s retaliation

claims. Romeka, 254 Md. App. at 442.

Filing an employment discrimination complaint

with an internal EEO department is considered a

protected activity. Edgewood Mgmt. Corp. v. Jackson,

212 Md. App. 177, 201-02 (2013). We hold that

Appellant satisfied the first element because he

20a

engaged in a protected activity when he submitted an

employment discrimination complaint to the internal

EEO office.

Turning to the second element, in the retaliation

context, an employment action is not materially

adverse “unless it constitutes an ultimate employment

decision which may include acts such as hiring,

granting leave, discharging, promoting, and

compensating.” Manikhi v. Mass Transit Admin., 360

Md. 333, 350 (2000) (cleaned up). Courts find that

adverse actions resulting in a modification in salary,

benefits, or responsibility generally satisfy this

element. Jd. Actions that do not fit squarely within

these categories may still qualify as adverse

employment actions. Lockheed Martin Corp. v.

Balderrama, 227 Md. App. 476, 509 (2016); Jensvold

v. Shalala, 829 F. Supp. 131, 140 (D. Md. 1993)

(holding that an employee experienced an adverse

employment action where an employer relinquished

daily tasks to another employee and denied her the

ability to publish her work); Holcomb v. Powell, 433

F.3d 889, 902 (D.C. Cir. 2006) (finding that when an

employee experienced “extraordinary reduction in

responsibilities that persisted for years” it could lead

to “objectively tangible harm”).

Not every adverse action ““that makes an

employee unhappy” will qualify as materially

adverse. Balderrama, 227 Md. App. at 508 (2016) (first

quoting Montandon v. Farmland Indus., Inc., 116 F.3d

355, 359 (8th Cir. 1997); then quoting Smart v. Ball

State Univ., 89 F.3d 4387, 441 (7th Cir. 1996)).

“Ordinary workplace strife . . . cannot constitute

21a

adverse employment action.” Matvia v. Bald Head

Island Mgmt., Inc., 259 F.3d 261, 272 (4th Cir. 2001).

“Reprimands, whether oral or written, do not per se

significantly affect the terms or conditions of

employment.” Lewis v. Forest Pharm., Inc., 217 F.

Supp. 2d 638, 648 (D. Md. 2002); Turner v. District of

Columbia, 383 F. Supp.2d 157, 173 (D.D.C. 2005)

(quoting Crady v. Liberty Nat'l Bank & Trust Co., 993

F.2d 132, 136 (7th Cir. 1998)) (stating that adverse

employment actions “must be more disruptive than a

mere inconvenience or an alteration of job

responsibilities”); Munday v. Waste Mgmt. of N. Am.,

Inc., 126 F.3d 239, 243 (4th Cir. 1997) (stating that

being yelled at, ignored, or spied on by a supervisor is

not considered an adverse employment action “without

evidence that the terms, conditions, or benefits of...

employment were adversely affected”).

Here, the second element was not satisfied as

the facts as averred did not constitute adverse

employment actions: “Ms. Myers scheduled a

performance review and insubordination meeting;

some of his work responsibilities were taken away and

given to Mr. Klinger; he had hmited communication

with Ms. Myers and Ms. Bailey; he was excluded from

meetings; and he received a negative reference once he

resigned.” We agree with the trial court’s findings that

these events did not result in a change in Appellant’s

salary, benefits, or ability to advance. Moreover, we

note that the reassignment of responsibilities to Mr.

Klinger and the change in office space occurred prior

to the protected activity, and thus, cannot be

considered retaliation.

22a

If Appellee did, in fact, submit a negative

reference to a prospective employer after Appellant

resigned, this would impact Appellant’s ability to

advance, thus, making it an adverse employment

action. Appellant’s assertion that Appellee provided

negative references is based solely on the fact that he

did not receive the position at BCPS or the job opening

in Baltimore City Public Schools. However, Appellant

did not receive any feedback from the BCPS position,

and he was told, following an interview process with

Baltimore City Public Schools, that he was not the best

fit for the job. Because of the many factors that

influence a hiring process, it would be an unreasonable

inference to conclude that these rejections were the

direct result of a negative reference.

Assuming, arguendo, that Appellee did provide

a negative reference, Appellant’s claim, nevertheless,

fails as he did not provide a causal connection between

his EEO complaint and the negative reference. A

retaliation claim requires a causal connection between

the employee’s protected activity and the adverse

employment action. Aclaimant must demonstrate that

his “opposition to unlawful harassing conduct played

a motivating part in the employer’s decision to” act

against that employee. Belfiore v. Merch. Link, LLC,

236 Md. App. 32, 52 (2018) (quoting Ruffin Hotel

Corp., Inc. v. Gasper, 418 Md. 594, 612 (2011)). Here,

Appellant did not allege that a negative or inaccurate

reference from Appellee was based on his EEO

complaint instead of their honest assessment of his

work performance. The court did not err in dismissing

the retaliation claim.

23a

III. The circuit court did not err in dismissing

Appellant’s workplace harassment claim.

Appellant argues that he experienced workplace

harassment under Title VII and the ADEA. He argues

that he was publicly embarrassed when a loud

confrontation ensued between him and four of his

female colleagues over an office space. In terms of

harassment based on national origin, Appellant

overheard a derogatory comment made by Ms. Daniel

regarding his national origin.

Appellee argues that Appellant did not establish

that the harassment was based on his race, age, sex, or

national origin. Appellee contends that if there was

harassment, it was not sufficiently severe or pervasive

to alter his conditions of employment and create an

abusive atmosphere.

A hostile work environment claim is based on

the following: “(1) the harassment was unwelcome; (2)

the harassment was based on his race or age; (8) the

harassment was sufficiently severe or pervasive to

alter the conditions of employment and create an

abusive atmosphere; and (4) there is some basis for

imposing liability on the employer.” Wang v. Metro.

Life Ins. Co., 334 F. Supp. 2d 853, 862 (D. Md. 2004)

(quoting Causey v. Balog, 162 F.3d 795, 801 (4th

Cir.1998)). We reiterate that this Court is permitted to

rely on federal cases in assessing Appellant’s work

harassment claim as it involves Title VII. Romeka, 254

Md. App. at 442.

Neither party disputes that the conduct of the

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female employees was unwelcome. The second element

is not satisfied, however, as it requires proof or a claim

of a “direct or inferential connection” to race. Wang,

334 F. Supp. at 863 (stating that harassment must go

beyond “personal grievances” and cannot be loosely

related to race but a result of “racial animus”). To be

sure, Appellant and his co-workers had a strained

relationship. However, Appellant has not alleged that

the strained relationship was due to racial animus or

the Appellant's age or national origin. The issues

between the parties appear to be more indicative of

personal grievances or differences in opinion regarding

the in-person work policy and occupancy of the office

space.

Assuming, arguendo, that Appellant did

establish a direct or inferential connection between the

hostile events and his race or age, his claim still fails

because the harassment was not so “sufficiently severe

or pervasive to alter the conditions of employment and

create an abusive atmosphere.” Causey, 162 F.3d at

801. The third element is analyzed under the totality

of the circumstances by considering “the frequency of

the discriminatory conduct, its severity; whether it is

physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.””

Manikhi, 360 Md. at 348—49 (first quoting Beardsley v.

Webb, 30 F.8d 524, 529 (4th Cir.1994); then quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

The standard for proving a workplace harassment

claim “is intended to be a very high one.” Jackson v.

State of Md., 171 F. Supp.2d 5382, 542 (D. Md. 2001);

Thorn v. Sebelius, 766 F. Supp.2d 585, 601 (D. Md.

25a

2001) (holding that a disagreement “with the

management style or decisions of those who

supervise[] . . . is not actionable under Title VII.”).

Compare Nicole v. Grafton School, 181 F. Supp.2d 475,

484 (D. Md. 2002) (dismissing a Title VII claim for a

hostile work environment where a group of employees

were called a “bunch of African fools” because the

treatment was not “continuous and prolonged”), with

Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th

Cir. 2001) (holding that a racially hostile environment

existed where an African American employee was

constantly taunted with repugnant racial slurs).

Here, the court found that Appellant did not

satisfy the third element because being “embarrassed

when he was yelled at one time outside his office” was

“not enough [to] establish a severe or pervasive work

environment as required by the third element.” We

agree with the court that Appellant and his coworkers’ confrontation over the office space resulted in

embarrassment for Appellant. However, as noted by

the trial court, there were no physical threats, and the

incident was isolated. An uncomfortable but isolated

incident resulting from opposition to a management

decision does not constitute severe or pervasive

harassment.

Appellant relies on Pennsylvania State Police v.

Suders in asserting that he was harassed on the basis

of gender. 452 U.S. 129 (2004). In Suders, the plaintiff,

a woman, was subject to severe harassment from her

male supervisors. Jd. at 135. Her male supervisors

made comments about sex with animals and oral sex,

they made obscene gestures with their genitalia in

26a

close vicinity to the plaintiff, they stated that a “village

idiot” could do her job, and they hit objects to

intimidate her. Jd. The plaintiff received little

assistance in submitting an internal complaint against

her male supervisors. Jd. at 135-36. In an act of

retaliation, her male supervisors falsely accused the

plaintiff of theft, detained her, and interrogated her.

Id. at 136. The plaintiff filed a civil action against her

employer alleging sexual harassment and constructive

discharge. Id. at 186-37. The district court dismissed

her case following a grant of the defendant’s motion for

summary judgment. Jd. at 137. The Court held that

the case “in its current posture, presents genuine

issues of material fact concerning Suders’ hostile work

environment and constructive discharge claims.” Id. at

152. In contrast, Appellant’s alleged harassment

involves a one-time confrontation with his female

colleagues over an office space. We find that Suders is

factually distinct from Appellant’s circumstances.

Finally, current case law emphasizes the

frequency of offensive comments in determining

whether there was harassment and it avoids finding

workplace harassment in the event of a “mere

offensive utterance.” Manikhi, 360 Md. at 348—49.

Taking into account the totality of the circumstances

here, Ms. Daniel’s joke to other co-workers referring to

Appellant as an “African guy” does not constitute

harassment, even though it was an _ offensive

utterance.

Finally, the fourth element is not satisfied as

there is no basis for imposing liability against

Appellee. “Employers are not automatically liable for

27a

acts of harassment levied by supervisors against

subordinates.” Spriggs, 242 F.3d at 186. However, if

“an employee suffers a tangible employment action at

the hands of his supervisor (or successively higher

authority) as the result of prohibited discrimination,

then the employer may be held liable on the premise

that the supervisor acted within the scope of his

agency.” Jd. Tangible employment actions “fall within

the special province of the supervisor .... They are

the means by which the supervisor brings the official

power of the enterprise to bear on subordinates.” Jd.

(Cleaned up). Because Appellant has not alleged

sufficient facts to prove that Ms. Myers, Appellant’s

supervisor, subjected him to harassment or

discrimination in her capacity as supervisor, there is

no basis for imposing liability onto Appellee. The court

did not err in dismissing the hostile workplace claim.

IV. The circuit court did not err in dismissing

Appellant’s constructive discharge claim.

Appellant argues that a constructive discharge

occurred because Appellee failed to timely investigate

and respond to his internal EEO complaint. Appellant

“was concerned that if he continued in this

environment, they would ultimately find a reason to

terminate him or he himself might eventually snap at

some point and be forced to respond to their actions in

kind.” He alleges that “the work environment turned

extremely hostile, there were multiple retaliatory acts,

ultimately leading to the plaintiff's resignation for

health and safety concerns.” Appellant references the

following as retaliatory acts: the loss of his remote

work status and his office space; the scheduling of an

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insubordination meeting; and Ms. Myers and Ms.

Bailey’s several requests for him to return to the office.

He asserts that he “had no choice but to resign for fear

of his own mental health or extremely adverse

consequence such as dismissal from employment.”

Appellee argues that both a hostile work

environment and constructive discharge must be

satisfied to establish this claim. Appellee further

argues that even if a hostile work environment were

present, Appellant’s working conditions were not so

intolerable as to plead a constructive discharge claim.

A constructive discharge occurs when an

employer causes working conditions “to become so

intolerable that a reasonable person in the employee’s

place would have felt compelled to resign.” Beye v.

Bureau of Nat. Affs., 59 Md. App. 642, 653 (1984).

Intolerability in the workplace varies depending upon

the circumstances of a case; however, it “is more

stringent than the ‘severe and pervasive’ standard for

hostile work environment claims.” Nnadozie v. Genesis

HealthCare Corp., 730 F. App’x 151, 162 (4th Cir.

2018).

In the case of Moniodis v. Cook, 64 Md. App. 1

(1985), an employer demanded that its employees

“submit to polygraph examinations regarding the

inventory shortages and ‘shrinkage’ at certain Rite-Aid

Stores[.]” Id. at 6. Employees who refused to complete

a polygraph were either terminated or subjected to

“working conditions calculated to force the[] employees

to resign.” Id. at 7. The supervisors purposefully

enforced a policy that made “hour and location

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