Based on a claim of sexual discrimination, Linda Molesworth, D.V.M., appellee, filed suit in the Circuit Court for Anne Arundel County, alleging common law wrongful discharge by her former employers, Dr. Randall Brandon and Randall Brandon, D.V.M., P.A., appellants.
The evidentiary centerpiece of Molesworth's suit was her contention that, at the time of discharge, she specifically asked if she was being terminated because she was a woman. Dr. Jeffrey Palmer, a veterinarian in Brandon's employ,
As appellants employ fewer than fifteen employees, they are statutorily exempt from the enforcement provisions of the Maryland Fair Employment Practice Act (the "Act"), Md. Code Ann., Art. 49B, §§ 1-18 (1994). Section 16(a) of the Act prohibits, inter alia, discrimination in the workplace based on gender. Accordingly, we must determine whether Molesworth may recover from a small employer based on a common law cause of action for wrongful discharge. If so, we must discern whether the evidence presented at trial supports appellee's claim. In resolving that issue, we must ascertain the standard of causation that governs an action for wrongful discharge and the applicable burdens of proof.
We conclude that the Act does not bar a common law claim for wrongful discharge against an employer who is statutorily exempt from suit under the Act. We are of the view that Molesworth presented sufficient evidence from which a reasonable jury could rationally have concluded that Brandon's decision to discharge Molesworth was caused by discriminatory intent. But as the trial court erroneously omitted an important instruction to which appellants were entitled, we shall reverse and remand for a new trial.
Brandon, a veterinarian, maintains a practice of veterinary medicine specializing in the treatment of thoroughbred race horses. In 1987, Brandon offered employment to Molesworth, pending her successful graduation from the University of Pennsylvania Veterinary School and her licensing. Molesworth was hired to replace Dr. Joseph Rumsey, who had been fired in 1987. From July 1, 1988 to July 13, 1990, Molesworth was employed by appellants, pursuant to employment contracts dated July 1, 1988 and July 1, 1989. At the time of Molesworth's termination on July 13, 1990, she had been compensated at an annual rate of $35,000.
When Molesworth began work on July 1, 1988, she was Brandon's first female full-time veterinarian. Through his professional corporation, Brandon has employed a varying number of full-time veterinary doctors; while Molesworth was employed there, the corporation had four full-time veterinary positions and less than fifteen employees altogether. Brandon testified that the success of his practice depends upon client satisfaction with the veterinarians.
As the most junior and least experienced member of the practice, Molesworth was responsible for performing the bulk of the work at the "Lasix barn." Essentially, Lasix duties included giving horses Lasix shots prior to races, approving medications, examining horses after races for conditions requiring attention, and performing other miscellaneous tasks. These duties apparently involved relatively little thought or effort and entailed considerable periods of idleness. Although the other members of the practice worked Lasix barn duties, they did so less frequently than Molesworth.
In December, 1988, and again in March, 1989, Molesworth received bonuses that were calculated from her base salary. On Molesworth's first anniversary of employment, Brandon offered her a renewal contract for another one-year term at $30,000 salary, which Molesworth accepted. Thereafter, some of Brandon's clients began complaining about Molesworth. One of them, Dennis Manning, indicated that he did not want Molesworth to work in his barn because he did not want a female veterinarian. In August, 1989, Brandon gave Molesworth another bonus — also based on salary — and attached a note that stated as follows: "Linda, you are doing a very good job and I appreciate your efforts. Don't worry about the Mannings. We can't please them all. He's the one with the problem. Thanks, Randy."
In December, 1989, Molesworth again received a salary-linked bonus. Brandon verbally complimented Molesworth's work and he sent another note:
Through December, 1989, the practice and distribution of duties did not significantly change. Molesworth never had any complaints with how she had been treated during the first 21 months of employment. Problems began to surface after April 1, 1990, when Dr. Mark Akin left the practice. The first concern involved Akin's departure from the practice. A horse trainer and a van driver, neither of whom were employed by Brandon, gave Akin a going-away dinner to which Molesworth was not invited. One witness later characterized the dinner as a "raunchy bachelor party." Molesworth learned of the party at a meeting held during the second week of April, 1990. According to Molesworth, when she indicated that her feelings were hurt by not being invited, Brandon laughed and commented that she would have been the only woman present.
At the same meeting, Brandon informed Molesworth about complaints that he had received regarding her performance. According to Molesworth, Brandon said that he was not sure why the clients were complaining, as "[Molesworth's] veterinary work is fine." Brandon also commented, "They've never had a female veterinarian work for them before." Brandon had no suggestions for Molesworth as to how to improve her work; when she asked for advice, Brandon replied, "just keep doing what you're doing because you are doing a good job and give them some time."
Molesworth also was offended by an incident that occurred after Akin left. She claimed that, ordinarily, if Brandon came to a racetrack at which one of his staff was working, he would personally confer with the staff member. On the day in question, when Molesworth was working at the Bowie Racetrack, Brandon did not visit Molesworth personally. Instead, he left a note on Molesworth's car windshield, which said: "I'm here, go to the races [at Laurel]."
Due to the advent of simultaneous racing at the Laurel and Pimlico racetracks in the Spring of 1990, the quantity of Lasix work increased dramatically. Accordingly, Brandon began to contract the majority of the Lasix duties to Dr. Peyton Jones, whose practice exclusively consisted of Lasix work. Also, in May, 1990, Dr. Greg Fox was hired to replace Akin. Nevertheless, at least partly due to the increase in volume, Molesworth's work continued to consist largely of Lasix barn duties throughout the spring. Although Molesworth complained that she was being given an unfair proportion of Lasix duties, she continued to work at the Lasix barn. Molesworth added that, when she discussed the Lasix schedule with Brandon in June, 1990, he indicated that he was giving Fox a lighter Lasix schedule than she had been given when she was the junior member because Brandon wanted Fox to meet more clients, and "that's just the way it's going to be." Molesworth also claims that, as a result of the increased Lasix load, she had to miss the discussions Brandon held at the end of the day with the members of his practice.
On July 1, 1990, Molesworth's second anniversary of employment, her salary was increased by $5,000. Yet thirteen days later, Molesworth was informed that the practice would not renew her contract. In the ensuing discussion with Palmer and Brandon,
At trial, Ms. Nancy Heil, a horse trainer, testified on behalf of Molesworth. She said that she had not had any problems with Molesworth's skill, technique, or attitude. On cross examination, however, Heil admitted that she had only used Molesworth for minor, routine matters.
When they testified, Palmer and Brandon both denied Molesworth's allegations of the specific statements she attributed to them, including Palmer's statement and Brandon's nod during the exit interview. Brandon testified that the reason for Molesworth's discharge had nothing to do with her sex; rather, it was based on the increasing volume of client complaints.
Appellants also called six trainers and three former employees of the practice, including Akin. The trainers confirmed that they had complained repeatedly about Molesworth's intractability and about the quality of her work.
Additionally, appellants called Dr. Jean Dobson, to whom an employment offer had been made a few months after Molesworth was released. Dobson said she had declined the position because she was earning more money working for the Federal Food and Drug Administration.
At the close of Molesworth's case, and again at the close of all the evidence, appellants moved for judgment under Md. Rule 2-519; the court denied both motions. After the jury returned a verdict for Molesworth, appellants filed a timely Motion for Judgment Notwithstanding the Verdict ("JNOV"), for New Trial, or for Revision of Judgment; the court denied appellant's post-trial motions, and this appeal followed.
Appellants present seven questions for our consideration:
We find no error as to the issues raised in questions 1, 2, 3, 6, and 7 and answer those questions in the negative. But for the reasons we shall explain below, we hold that the trial court erred in its instructions to the jury. We therefore answer question 5 in the affirmative and shall reverse and remand for a new trial. Of the various evidentiary issues raised under question 4, we shall address only one, which is relevant to this appeal, as we perceive that it is likely to arise on remand. See Md.Rule 8-131(a). We decline to reach the remaining evidentiary issues.
I. Common Law Wrongful Discharge
It is undisputed that at the time of her discharge on July 13, 1990, Molesworth was an at-will employee. In Maryland, with few exceptions, at-will employment has been held to be terminable by either party at any time for any reason whatsoever. Adler v. American Standard Corp., 291 Md. 31, 35, 432 A.2d 464 (1981) (citing St. Comm'n on Human Rel. v. Amecom Div., 278 Md. 120, 360 A.2d 1 (1976), Vincent v. Palmer, 179 Md. 365, 19 A.2d 183 (1941), and W., B. & A.R.R. Co. v. Moss, 127 Md. 12, 96 A. 273 (1915)). Thus, the Court said: "The common law rule, applicable in Maryland, is that an employment contract of indefinite duration, that is, at will, can be legally terminated at the pleasure of either party at any time." Adler, 291 Md. at 35, 432 A.2d 464. See also Suburban Hosp. v. Dwiggins, 324 Md. 294, 303, 596 A.2d 1069 (1991); Hrehorovich v. Harbor Hospital, 93 Md.App. 772, 784-85, 614 A.2d 1021 (1992); Castiglione v. Johns Hopkins Hosp., 69 Md.App. 325, 338, 517 A.2d 786 (1986); see also generally Jane P. Mallor, Discriminatory Discharge and the Emerging Common Law of Wrongful Discharge, 28 AZ.L.REV. 651 (1986); Comment, Guidelines for a Public Policy Exception to the Employment At Will Rule: The Wrongful Discharge Tort, 13 CONN.L.REV. 617 (1980-81).
Although the common law at-will rule has not been abrogated, statutory exceptions have been "engrafted" that limit the previously unfettered discretion to discharge at-will employees. Adler, 291 Md. at 35, 432 A.2d 464; Gil A. Abramson & Stephen M. Silvestri, Recognition of a Cause of Action for Abusive Discharge in Maryland, 10 U.BALT.L.REV. 258, 260-62 (1981). Of particular relevance to this case is the Act, which prohibits termination for discriminatory reasons.
In Adler, 291 Md. 31, 432 A.2d 464, the Court of Appeals recognized the common law tort of wrongful discharge,
In the wake of Adler, the focus of many wrongful discharge cases has been the clarity of the public policy at issue. For example, in Kern v. S. Baltimore Gen. Hospital, 66 Md.App. 441, 504 A.2d 1154 (1986), an employee discharged for absenteeism due to a work-related injury alleged that the statutory policy underlying the Workman's Compensation Act applied to her discharge. This Court reviewed the statutory policy, which expressly precludes discharge "solely" because the employee has filed a claim under the Workman's Compensation Act. Id. at 441, 504 A.2d 1154 (citing Art. 101, § 39A (1985)). From the language of the statute, we concluded that the policy did not contain a sufficiently clear mandate regarding discharges that were not "solely" due to a filed claim. Id.
Molesworth avers that Art. 49B, § 14 articulates a clear mandate of public policy to support her claim. Section 14 states, in pertinent part, as follows:
Declaration of Policy.
Nevertheless, relying on Art. 49B, § 15(b)
Brandon also contends that, even if an action for common law wrongful discharge is available, it would be fundamentally unfair, illogical, and contrary to the legislative intent, for an employee to have greater remedies against an exempt employer than she would otherwise have against a non-exempt employer. He claims, therefore, that at a minimum, he ought to have the same protections that the Act affords to larger employers, such as the short statute of limitations and the 30-month limit on back pay. Art. 49B, §§ 9-12 (enforcement powers of the Md.Comm'n on Human Relations).
In Makovi, the Court limited the availability of the common law wrongful discharge action. There, relying on the policy enunciated in Art. 49B, § 14, plaintiff sued her employer, a corporation not statutorily exempt, claiming sex discrimination when she was discharged during pregnancy. The Court held that a claim of common law wrongful discharge, by its nature as a purely supplemental remedy, was not available to plaintiff, because the Act set forth its own remedy. Id. at 609, 561 A.2d 179. Essentially, the Court concluded that, as the tort is supplementary and not complementary, it is only available where it provides relief that does not overlap an already extant remedy; only where a clear mandate of public policy would otherwise be left unvindicated is the common law tort available. Id. at 611-12, 561 A.2d 179. Observing that Art. 49B authorized individuals to file complaints with the Maryland Commission on Human Relations (the "HRC") and empowered the HRC to investigate and remedy acts of employment discrimination, the Court declined to extend the common law tort of wrongful discharge to discriminatory employment practices covered by the enforcement mechanisms in the Act. Id. at 621-26, 561 A.2d 179. See also generally Comment, Torts — Wrongful Discharge — Maryland Limits The Scope Of The Wrongful Discharge Tort Where Statutory Civil Remedies Are Available, 20 U.BALT.L.REV. 290 (1990).
As Makovi construed a claim against an employer who was within the purview of the Act, it is not applicable here. Rather, we find persuasive the federal court's analysis in Kerrigan v. Magnum Entertainment, Inc., 804 F.Supp. 733 (D.Md. 1992).
In Kerrigan, the court faced the precise issue raised here by Brandon. Construing Maryland law, the court held that a common law cause of action for wrongful discharge may be lodged against a defendant who employs fewer than fifteen people. In so holding, the court disagreed with the defendant's contention that the statutory exclusion of small employers was "the result of deliberate legislative intent to avoid burdening small businesses with suits alleging discrimination in employment." 804 F. Supp. at 735. What the court said is pertinent here:
804 F. Supp. at 736.
We agree with Molesworth that Art. 49B, § 14 constitutes a "clear mandate of public policy." We also agree with Kerrigan that the policy applies to all employers, including those, like appellants, who employ less than fifteen people.
Maryland has never interpreted the Act's exemption for small employers as a license to discriminate. Indeed, such a suggestion is patently ludicrous. Rather, as the Court said in Nat'l Asphalt Pavement Ass'n, Inc. v. Prince George's Co., 292 Md. 75, 437 A.2d 651 (1981): "Employers with less than fifteen employees are not permitted by the state statute to discriminate in their employment practices; they simply are not covered." Id. at 79, 437 A.2d 651. Further, "in enacting legislation prohibiting discriminatory employment practices, [the Legislature] did not intend to preempt the area." Id. at 80-81, 437 A.2d 651. See also Kerrigan, 804 F. Supp. at 736 (quoting same language).
Nevertheless, as in Kerrigan, and in contrast to Makovi, Molesworth does not have a statutory remedy under the Act, because § 16(a) only prohibits discriminatory acts by "employers" who, pursuant to § 15(b), employ at least fifteen people.
II. Mixed-Motive Cases
Our conclusion that a claim for common law wrongful discharge was viable here does not end our inquiry. We must also determine whether Molesworth presented sufficient evidence to withstand a motion for judgment or a motion for JNOV. In order to resolve that question, we must analyze the evidence in light of the proper standard of causation and the appropriate burdens of proof.
We are not aware of any Maryland case that has considered the causation standard applicable to a common law wrongful discharge action. Therefore, cases arising directly under Art. 49B and its federal counterpart, Title VII, codified at 42 U.S.C. §§ 2000e through 2000e-5 (1988), are instructive.
In Maryland, in a statutory employment discrimination action, the plaintiff must prove that the employer committed a discriminatory employment act in violation of § 16.
Those instances in which the employer had some discriminatory animus but also had independent, legitimate grounds for discharging the plaintiff have produced problems. In these so-called "mixed-motive" cases, the question arises as to whether, and under what circumstances, the independent, legitimate grounds for discharge overcome the unlawful discrimination, even if the discrimination was a factor in the decision to discharge. In order to determine whether the discrimination caused the discharge in a mixed-motive case, we must consider whether the employer's unlawful discriminatory intent or motive played a role in the decision to discharge or if, even without consideration of gender, discharge would have resulted.
Certainly, the mixed-motive problem is present here. Brandon's alleged nod indicated that gender was "a part of" the decision to terminate, but Brandon also presented substantial evidence to establish legitimate reasons to discharge Molesworth, including that his clients were dissatisfied with her.
Other courts considering the mixed-motive question have not agreed on a single standard of causation or the concept of "because." Price Waterhouse v. Hopkins, 490 U.S. 228, 238 n. 2, 109 S.Ct. 1775, 1785 n. 2, 104 L.Ed.2d 268 (1989). Rather, the decisions fall within a spectrum. On one end of the spectrum, if the discrimination played "any part at all," the decision to terminate is illegal. See, e.g., U.S. v. Hayes Int'l Corp., 6 Fair Empl.Prac.Cas. (BNA) 1328, 1330, 1973 WL 302 (N.D.Ala. 1973), aff'd w/o opin., 509 F.2d 574 (5th Cir.1975) ("no matter how slight or tangential"). Other cases require the discrimination to have been a "significant factor", Whiting v. Jackson State Univ., 616 F.2d 116, 121 (5th Cir.1980), a "substantial part," Berl v. Westchester Co., 849 F.2d 712, 714 (2d Cir.1988), a "motivating factor," Fields v. Clark Univ., 817 F.2d 931, 937 (1st Cir.1987), and a "determining factor," Mack v. Cape Elizabeth Sch. Bd., 553 F.2d 720, 722 (1st Cir.1977) (i.e., "that but for [the discrimination] she would have been reemployed."), in order for the discharge to be found unlawful.
The overwhelming majority of courts have held that the proper standard falls somewhere in the middle. Prior to the Supreme Court's decision in Price Waterhouse, there appeared to be a convergence upon a "but for" standard. McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 2580 n. 10, 49 L.Ed.2d 493 (1976) (to demonstrate that employer's proffered reason for discharge was "pretext," employee need only show that discrimination was "a `but for' cause."); Ross v. Communications Satellite Corp., 759 F.2d 355, 366 (4th Cir.1985) (D.Md.) (citing cases); see also Mark S. Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 COLUM.L.REV. 292, 308 (1982); HENRY H. PERRITT, JR., EMPLOYEE DISMISSAL LAW AND PRACTICE § 7.6, at 378 (2d. ed. 1987). Under this standard, "a plaintiff challenging an adverse employment decision [must] show that, but for her gender (or race or religion or national origin), the decision would have been in her favor." Price Waterhouse, 490 U.S. at 238 n. 2, 109 S.Ct. at 1784 n. 2 (citing cases).
Price Waterhouse, however, precipitated a change in the landscape of Title VII jurisprudence. There, as here, the plaintiff claimed she had been denied promotion, and later constructively discharged, because she was a woman. The employer, on the other hand, contended that she had been fired because of her abrasive, brusque, impatient, and aggressive behavior and her poor interpersonal skills. The plaintiff testified as to statements by her supervisors to the effect that her "flawed `interpersonal skills' can be corrected by a softhued suit or a new shade of lipstick," and that she needed "`a course at charm school.'" Id. at 256, 109 S.Ct. at 1793-94. The district court found that the employer's proffered reason was not pretextual, but as sex played a role in the decision, that court held that the employer had unlawfully discriminated.
On appeal, the Supreme Court splintered. For divergent reasons, six Justices agreed only upon the ultimate holding:
Id. at 258, 109 S.Ct. at 1795.
Interpreting 42 U.S.C. § 2000e-2(a)(1, 2),
But proving discrimination played a role in the decision does not end the inquiry:
Id. at 242, 109 S.Ct. at 1786.
As an affirmative defense, an employer can avoid liability by demonstrating, by a preponderance of the evidence, that the employment decision would have been the same even without taking gender into account. Id. at 246, 258, 109 S.Ct. at 1788, 1794.
Id. at 244-45, 109 S.Ct. at 1787 (footnote omitted).
The plurality cautioned that, in order for a plaintiff to prevail, the discrimination must have been present at the moment the employer arrived at the decision in question. Id. at 241, 250, 109 S.Ct. at 1786, 1790-91. Moreover, the plurality recognized that "[r]emarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision." Id. at 251, 109 S.Ct. at 1791. In the words of the Court:
Id. at 252, 109 S.Ct. at 1791.
In an opinion concurring in judgment only, Justice O'Connor took issue with the plurality's interpretation of § 2000e-2(a). After reviewing the legislative history, Justice O'Connor concluded that "because" meant that discrimination must play a "but for" role. Id. at 262-63, 109 S.Ct. at 1796-97. She noted that, in contrast to the plurality, her interpretation was consistent with prior Supreme Court cases. See McDonald, 427 U.S. at 282 n. 10, 96 S.Ct. at 2580 n. 10; Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 286, 97 S.Ct. 568, 575, 50 L.Ed.2d 471 (1977) (a poor employee should not be entitled to a job merely because employer's improper motive made more certain an already clear decision). Accordingly, she concluded that plaintiffs should bear the burden of demonstrating that illegitimate criteria played "a substantial factor in an adverse employment decision." Price Waterhouse, 490 U.S. at 265, 109 S.Ct. at 1798. Thereafter, however, she believed that the policies underlying Title VII, traditional tort analysis,
As a prerequisite for shifting the burden of persuasion, Justice O'Connor would require that the plaintiff make a "strong showing" that the illicit motive in fact affected the employment decision.
Id. at 277, 109 S.Ct. at 1804-05 (emphasis added).
Whether Price Waterhouse altered the standard of causation,
We adopt here the plurality analysis in Price Waterhouse. Applying Price Waterhouse to this mixed-motive case, our review of the evidence produced at trial, considered in the light most favorable to Molesworth, compels the conclusion that Molesworth presented sufficient evidence to withstand motions for summary judgment, judgment, and JNOV.
Molesworth identified several incidents to support her contention of sex discrimination. She pointed to Brandon's "amusement" at her complaint about not having been invited to Akin's going-away party,
Through her own testimony, Molesworth offered Brandon's notes and comments to show that Molesworth had consistently performed the technical aspects of her duties well, and to establish Brandon's satisfaction with her work. She offered the testimony of only one other witness, a trainer who had no problems with Molesworth's work.
As we see it, the linchpin of Molesworth's case is the actual termination coupled with her testimony about the events during the exit interview. There, Molesworth claims Brandon adopted with a nod Palmer's express statement that Molesworth's sex was part of the reason she was discharged.
The events at the exit interview present direct evidence that Brandon's decision was motivated in some way by Molesworth's sex. Nonetheless, the evidence also demonstrates mixed motives for the decision to discharge. Accordingly, based on Price Waterhouse, we recognize a shift of the burden of persuasion to appellants, and our focus turns to their case.
As we have noted, appellants denied Palmer's statement and Brandon's nod. Moreover, appellants presented evidence that, even if Molesworth's gender were a motivating factor in the employment decision, they had legitimate reasons, at the time of discharge, to terminate Molesworth, and would have come to the decision to discharge without regard to gender.
Appellants produced considerable evidence, if the jury chose to believe it, "justifying their ultimate decision" to terminate. Price Waterhouse, 490 U.S. at 248, 109 S.Ct. at 1789. They called six clients to support their contention that Molesworth's personality and performance — not her gender — spawned the complaints and jeopardized business. Their witnesses confirmed the fact that working with or around Molesworth was not easy. Additionally, Akin gave a specific description of at least one procedure which he believed Molesworth did not perform properly. In short, appellants provided evidence as to legitimate concerns that they claim governed the decision to discharge Molesworth, even if gender also was a factor. In addition, appellants established that it was Brandon who hired Molesworth and then fired her after two years. Soon after, he offered her position to another woman, Dr. Jean Dobson, even before learning of Molesworth's suit.
Based on Price Waterhouse, it is clear that appellants had the burden of persuasion with respect to their claim that Molesworth was discharged because of legitimate business concerns and that, regardless of her sex, the result would have been the same. Id. at 248, 109 S.Ct. at 1789. As a general proposition, the resolution of conflicting inferences as to state of mind is within the province of the jury. DiGrazia v. Exec. For Montgomery Co., 288 Md. 437, 445, 418 A.2d 1191 (1980) (citing Berkey v. Delia, 287 Md. 302, 324-26, 413 A.2d 170 (1980)). It was the function of the jury, as fact-finder, to evaluate the testimony of the witnesses; the jury was entitled to believe all, some, or none of the testimony of the various witnesses. DiLeo v. Nugent, 88 Md.App. 59, 76, 592 A.2d 1126, cert. granted, 325 Md. 18, 599 A.2d 90 (1991).
It is apparent that the jury found Molesworth's evidence more credible than the employers' evidence; it was entirely within the jury's province to do so. U.S. Money v. Kinnamon, 326 Md. 141, 149-51, 604 A.2d 64 (1992). Further, the jury was entitled to conclude that Brandon did nod and, in so doing, that he admitted that Molesworth's gender was "part of" his decision to discharge her.
Even if, on the somewhat scanty evidence presented by Molesworth, we would have reached a different conclusion, neither this Court nor the trial court is permitted to substitute its evaluation of the evidence for that of the jury. Montgomery Co. v. Voorhees, 86 Md.App. 294, 302, 586 A.2d 769 (1991). Accordingly, we must conclude that the court did not err in denying appellants' various motions for judgment based on the evidence presented.
III. Evidentiary Rulings
Of the evidentiary issues raised by appellants, one is relevant to the issues we consider in this appeal. Specifically, appellants contend that Dr. Palmer's exit-interview statement was hearsay and should have been excluded.
Under Md.Rule 5-802,
Although Brandon cites authority to the effect that a subordinate's statement is not directly admissible to prove the employer's intent, these cases do not address the issue in question — namely whether a subordinate's statement is exempted from the hearsay rule where the employer has adopted the subordinate's statement. Accordingly, we conclude the trial court did not err in permitting Molesworth to testify as to Palmer's statement.
IV. Jury Instructions
After the court instructed the jury, appellants made several broad exceptions to the court's jury instructions. At issue here is the employers' exception to the court's failure to instruct that, when the hirer and firer is the same person and the employee is fired soon after being hired, the employer is entitled to an inference that discrimination was not a factor in the employment decision.
Preliminarily, we note that there is a dearth of law concerning jury instructions relevant to the issues that we have already discussed. Indeed, the trial court did a commendable job in setting forth the applicable law in a discrimination case, considering that no Maryland case, heretofore, has precisely set forth the applicable standard of causation in a mixed-motive context.
We are of the view that, with one significant exception, the instructions, taken as a whole, adequately explained the law of causation to the jury.
Appellants are, however, correct in maintaining that the trial court erred in failing to give the substance of one of the instructions proffered by appellants. Relying on Proud v. Stone, 945 F.2d 796 (4th Cir.1991), they requested an instruction to the following effect:
Appellants also cite Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 175 (8th Cir.1992) for the proposition that two years between hiring and firing is a sufficiently short time to permit such an inference.
In Proud, an age discrimination case,
The rationale of Proud has been followed in later Fourth Circuit cases, as well as in other federal circuits. See, e.g., Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 513 (4th Cir.1994) (in age discrimination case, the employer hired another older person when plaintiff was hired, and the other employee was not discharged along with plaintiff; both facts are relevant to defendant's contention that the case is governed by Proud); Lowe, 963 F.2d at 174-75 (in age discrimination case, the court granted motion for judgment at end of plaintiff's case because a jury finding of discrimination when plaintiff had been fired two years after being hired "would have been wholly unreasonable."); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 847 (1st Cir.1993) (in age discrimination case, defendant was entitled to summary judgment based on Lowe and Proud because defendant gave plaintiff a raise two years before firing defendant, and retained another protected employee); Moore v. Reese, 817 F.Supp. 1290, 1299 (4th Cir.1993) (D.Md.) (in age discrimination case, plaintiff failed to proffer a prima facie case; additionally, plaintiff was in a protected class when hired, and did not present anything to undermine the inference discussed in Proud); Herbig v. Int'l Bus. Machines Corp., 796 F.Supp. 865, 864 (D.Md. 1992) (motion to dismiss granted in age discrimination case because claim of "some sudden discriminatory animus springing up" was so incredible it "does not wash in the tub of common sense.").
We agree with the general proposition that, where the hirer and firer are the same person and the employment period is sufficiently short, the obvious inference is that the decision to discharge was not caused or motivated by discrimination. But deciding which conclusions are reasonable to infer from a given set of facts is precisely the jury's function. DiGrazia, 288 Md. at 445, 418 A.2d 1191. Indeed, the Proud rationale begs a crucial factual question: exactly how short must the employment be for the inference to arise? Logically, the shorter the time span, the more potent is the inference. We can discern no bright line to help establish what time span commands a particular conclusion and what does not.
At the same time, we acknowledge that the inference recognized by Proud and Lowe is rational and important; based on the facts of this case, appellants were entitled to an instruction similar to the one they requested.
In increasing the number of employers potentially subject to the administrative remedies under Title VII, Congress was nonetheless concerned with overburdening the Equal Employment Opportunity Commission (the federal counterpart to the HRC). See, e.g., H.R.REP. No. 238, 92d Cong., 2d Sess. U.S.Code Cong. & Admin.News 1972, pp. 2137-86 (1972). But we are unable to find anything in the Title VII legislative history regarding the 1973 amendment to suggest that the purpose of the small employer exemption is to protect small employers from the policy of Title VII. Similarly, we believe the corresponding exemption in the Act was not intended to benefit small employers. Rather, it appears that the exemption was enacted to protect the HRC and the administrative process from the burdens of an unmanageable case load that would necessarily follow if the Commission had to investigate claims against every employer, regardless of size. See also Nat'l Asphalt Pavement Ass'n, Inc. v. Prince George's Co., 292 Md. 75, 79, 437 A.2d 651 (1981).
Prior to 1991, the salient portion of Title VII was similar in wording and substance to Art. 49B, § 16(a). In November, 1991, however, Congress significantly altered Title VII by Pub.L. 102-166, Title I, §§ 105(a), 106, 107(a), 108, Nov. 21, 1991, 105 Stat. 1074-76. Nevertheless, cases construing Title VII before the effective date of the 1991 amendments remain persuasive.
The McDonnell Douglas proof scheme is an alternative to the presentation of direct evidence. A plaintiff must produce a prima facie case by establishing: "(1) that she is a member of a protected class; (2) that she was discharged; (3) that at the time of her discharge, she was performing her job at a level that met her employer's legitimate expectations; and (4) that following her discharge, she was replaced by someone of comparable qualifications outside the protected class." Douglas v. PHH FleetAmerica Corp., 832 F.Supp. 1002, 1009 (D.Md. 1993). If the plaintiff meets this burden, the employer bears the burden of production to articulate "a legitimate, nondiscriminatory reason for terminating the plaintiff's employment." Id. The articulation of such a reason rebuts the inference of discrimination raised by the prima facie case. Moreover, the plaintiff retains the burden of persuasion that the proffered reason was pretextual and that the employer was motivated by discrimination. Id.