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Magee v. Dansources Technical Services3/28/2001
t, and retaliated against her after she complained about the harassment and rebuffed Fahey's advance. We must address several different arguments regarding each of these distinct "varieties" of sexual harassment.
A. Count One: Hostile Environment
The Court of Appeals' recent decision in Manikhi v. Mass Transit Admin., 360 Md. 333 (2000), sets forth the elements and proof requirements for a hostile environment sexual discrimination claim. The Court emphasizes that the allegedly discriminatory conduct must be so "objectively" severe or pervasive that it has a substantial effect on the terms or conditions of the employment.
To establish a claim for sexual harassment under [the hostile environment] provision the plaintiff must prove the following four elements:
`(1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) it was imputable on some factual basis to the employer.'
"Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Id. at 348-49 (quoting Spicer v. Virginia Dep't of Corrections, 66 F.3d 705, 710 (4th Cir. 1995), and Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993)).
In this case, we are asked to consider "how much" sexual harassment it takes to raise an "objective" inference that "it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment." See id. Magee argues that the trial court erred by making a factual determination regarding the evidence she proffered in opposition to summary judgment. In response, DTSI offers two arguments to explain why it was entitled to judgment on this claim. Because we do not know the trial court's reasons for granting this judgment, we shall consider both of DTSI's arguments.
1. Same Actor Inference Against Discrimination
DTSI argues that summary judgment on Magee's hostile environment claim was appropriate because of the "same actor inference." In cases where there is no direct evidence of discrimination, DTSI contends, the employer may rely on an inference that arises when the complaining employee has been hired and fired by the same individual within a relatively short time period. DTSI asserts that in Molesworth v. Brandon, 341 Md. 621 (1996), the Court of Appeals approved the Fourth Circuit's holding that in such circumstances there is "a strong inference that the employer's stated reason for acting against the employee is not pretextual," and therefore, that the adverse employment decision was not motivated by discriminatory intent. In its seminal opinion adopting a same actor inference, the Fourth Circuit explained the factual premise underlying the same actor concept.
' laims that employer animus exists in termination but not in hiring seem irrational.' From the standpoint of the putative discriminator, 'it hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological costs of associating with them) only to fire them once they are on the job .' Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) (quoting Donohue & Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 Stan. L. Rev. 983, 1017 (1991)) .
Here, DTSI asserts that the same actor inference approved by Molesworth "works to defeat Magee's attempt to avoid summary judgment," by "substantially" increasi
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