Dept. of Health v. Best

Maryland Department of Health v. Suzanne Best, No. 1279, September Term 2023.
Opinion by Ripken, J.
SUFFICIENCY OF THE EVIDENCE – RETALIATION – PROTECTED
OPPOSITIONAL ACTIVITY
To support a claim of retaliation under Title VII of the Civil Rights Act of 1964 or Title 20
of the Maryland State Government Article based on protected oppositional activity,
evidence must demonstrate that the protected oppositional activity was made on the basis
of race or some other protected status or class. Where there was no evidence that a
complainant’s oppositional activity was based on race, or a protected class or status, there
was insufficient evidence upon which a jury could conclude that the oppositional activity
was protected under Title VII or Title 20.
SUFFICIENCY OF THE EVIDENCE – RETALIATION – PROTECTED
OPPOSITIONAL ACTIVITY
Protected oppositional activity can be proven if a plaintiff can show that the employer
understood, based on the employee’s actions or the employer’s response, that the employee
was complaining of discriminatory conduct. Where there was no evidence that the
employer had knowledge that the employee’s complaint was based on race, there was
insufficient evidence of protected oppositional activity.
SUFFICIENCY OF THE EVIDENCE – RETALIATION – PROTECTED
OPPOSITIONAL ACTIVITY
Protected oppositional activity can be proven if a plaintiff can show that the employer
should have understood, based on the employer’s or the employee’s conduct, that the
employee was complaining of discriminatory conduct. Where there was no evidence that
the employer should have understood the employee’s complaint to be based on race, there
was insufficient evidence of protected oppositional activity.
SUFFICIENCY OF THE EVIDENCE – DISCRIMINATION – ADVERSE
EMPLOYMENT ACTION
To bring a claim for discrimination using circumstantial evidence, a plaintiff must prove:
(1) membership in a protected class; (2) satisfactory job performance; (3) an adverse
employment action; and (4) different treatment from similarly situated employees outside
the protected class. Under Muldrow v. City of St. Louis, Missouri, a plaintiff need only
show “some harm” to demonstrate an adverse employment action. A transfer or
reassignment can therefore form the basis for an adverse employment action. Evidence was
legally sufficient to demonstrate that an involuntary transfer was an adverse employment
action where it caused some harm by changing the terms and conditions of employment.
Circuit Court for Baltimore County
Case No. C-03-CV-20-004575

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 1279

September Term, 2023

______________________________________

MARYLAND DEPARTMENT OF HEALTH

v.

SUZANNE BEST

______________________________________

Zic,
Ripken,
Getty, Joseph M.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Ripken, J.
______________________________________

Filed: December 30, 2024

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2024.12.30
14:55:40 -05'00'
Gregory Hilton, Clerk
Suzanne Best (“Best”) sued her employer, the Maryland Department of Health

(“MDH”) in the Circuit Court for Baltimore County, claiming retaliation and race-based

discrimination under both Title VII of the Civil Rights Act of 1964 (“Title VII”), and Title

20 of the Maryland State Government Article (“Title 20”). Best alleged that she was

retaliated and racially discriminated against after she made an anonymous complaint to

MDH’s Office of the Inspector General (“OIG”) about MDH’s unfair hiring practices. Best

asserted that the retaliation and race-based discrimination occurred when MDH employees

involuntarily transferred her from Clifton T. Perkins Hospital Home (“Perkins”) to Spring

Grove Hospital Center (“Spring Grove”).

A trial was held on the merits. After MDH moved for judgment as a matter of law

(“JMOL”), and subsequently made two renewed motions for JMOL (“RJMOL”), the

circuit court denied MDH’s requests, and the case was submitted to the jury. The jury found

MDH liable to Best for retaliation and race-based discrimination and awarded Best

damages. MDH filed a motion for judgment notwithstanding the verdict (“JNOV”) or, in

the alternative, for a new trial, which the circuit court denied in August of 2023. MDH filed

this timely appeal.

ISSUES PRESENTED FOR REVIEW

MDH presented the following issues for our review: 1

1
Rephrased from:
1. Was the evidence insufficient to support a finding that the
Department’s reassignment of Ms. Best constituted unlawful retaliation for
her complaint about the Department’s hiring practices, where the complaint
did not relate to prohibited discrimination, the reassignment was not a
I. Whether there was legally sufficient evidence, such that a reasonable juror
could conclude that MDH’s involuntary transfer of Best was a retaliatory
action.

II. Whether there was legally sufficient evidence, such that a reasonable juror
could conclude that MDH’s involuntary transfer of Best constituted race-
based discrimination.

For the following reasons, we shall reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts were elicited at trial.

A. People and Facilities Relevant to this Lawsuit

In September of 2016, Best, a White woman, began working at Perkins as an

Assistant Director of Nursing (“ADON”). Perkins differs from the other hospitals in the

Maryland psychiatric hospital system, as it is the only maximum security forensic

psychiatric hospital in the State. When Best started her ADON role at Perkins, the CEO

was John Robison (“Robison”).

Prior to working at Perkins, Robison worked at Levindale Hebrew Geriatric Center

(“Levindale”). Levindale is a geriatric care facility that typically employs nursing staff

from the private sector; because of the difference in services provided between Perkins and

Levindale, the two facilities employ nurses who frequently have different qualifications,

demotion, and the reassignment took place more than a year and half after
the complaint?

2. Was the evidence insufficient to support a finding that the
Department’s reassignment of Ms. Best constituted unlawful race
discrimination, where the reassignment was not a demotion, no similarly
situated employee was treated more favorably than Ms. Best, and any basis
for a finding of discrimination was speculative?
2
dependent upon the facility and the employer. Robison served as CEO of Perkins until the

summer of 2017, when he was promoted to Chief of Hospital Administration for MDH, a

position in which Robison oversaw all state-funded hospitals in Maryland. Robison left

MDH in March of 2021.

Michelle Preston (“Preston”) began working for MDH in late 2016. She had

previously worked at Levindale. Preston was hired as Best’s supervisor with the title of

Director of Nursing (“DON”). This meant that the chain of command went from Best, to

Preston, to Robison.

After Preston began working at Perkins, she made comments that Perkins needed

higher quality employees who had worked in the private sector and indicated that she

wanted to bring over nurses from Levindale. Realizing that Preston was new to government

work, Best and her coworker Tammy Bailey (“Bailey”), an African American 2 woman and

the only other ADON at Perkins, explained the application and hiring process at Perkins.

After Best and Bailey shared this information with Preston, Preston told Best that there

were three people she knew at Levindale who would be interviewing for positions at

Perkins, all of whom were described as African American or Black women born in Nigeria.

B. Conflicts Begin between Best and Preston

Upon learning of these three potential new hires, Best immediately raised concerns

with Preston. Best expressed these concerns after learning that the potential new hires’

experience was primarily with patients who have chronic medical problems and cognitive

2
To be as respectful as possible, where a witness or party has provided language describing
their own race, we have attempted to use the language that person provided.
3
impairment, particularly related to aging, as opposed to treating people with severe mental

health diagnoses, many of whom have committed serious crimes. Best voiced concerns that

the candidates lacked any forensic psychiatric nursing experience, particularly in a

maximum-security facility, experience that was essential for the type of care required by

Perkins’ patients.

Despite having previously sat on interview panels, after noting her concerns to

Preston, which was the proper reporting procedure, Best was not invited to the interview

panels of any of the three candidates. Best renewed her concerns regarding the three

candidates’ lack of essential experience. Preston replied that all three of the candidates

were going to be hired. Soon after this conversation, Best also learned that the three new

hires were going to be paid more than the other nursing staff at Perkins. When Best inquired

about this, Preston replied that she was advocating for the new hires to receive higher pay

because they were used to getting higher pay at Levindale as those jobs were in the private

sector, and that in order to get the three candidates to come to Perkins, they would need to

be paid at a higher rate. After Best’s conversation with Preston, both she and Bailey were

required to attend diversity and cultural sensitivity training.

C. Best’s OIG Complaint: Tensions Rise between Best and Robison

In early 2017, Best made an anonymous complaint to the MDH’s OIG via a

telephone call concerning what Best suspected were illegal hiring practices by Robison and

Preston. Best’s OIG complaint was on the same grounds as her original complaint to

Preston: that the new employees from Levindale were being paid more than nurses

presently employed at Perkins and that they lacked the high-level expertise needed by

4
psychiatric nurses working in a maximum-security facility. In response to Best’s

complaint, a representative from the OIG visited Perkins and conducted an audit of

Perkins’ hiring practices in the spring of 2017. Best testified at trial that following the OIG

audit, she understood that Preston and Robison were to stop hiring people from Levindale.

On April 24, 2017, less than one month after the OIG audit, Best was required to

attend a meeting with Robison. Upon Best’s arrival, Robison was seated at a table with

Jazmine Rich (“Rich”), the Director of Human Resources (“HR”) for Perkins. Robison

informed Best that the purpose of the meeting was that he believed Best was “in over her

head,” that Best was not a good fit for Perkins, and that his goal and plan was to fire Best.

Robison then told Best that after he and the Maryland Secretary of Health signed a letter

terminating Best, Robison learned that he could not terminate her because she was not an

‘at-will’ employee. As such, Best could only be terminated ‘for cause’ through progressive

discipline. Robison then told Best that he was going to terminate her through progressive

discipline. Best inquired of Robison at the conclusion of the meeting if he could specifically

identify his concerns in writing, which he did not do. Until this point, Best and Robison

had a positive relationship. Bailey also had an identical meeting with Robison and Rich

and was informed of the same intention regarding her.

Prior to this meeting, Preston, Best’s supervisor had never discussed any grounds

for discipline nor Robison’s alleged concerns with Best’s job performance. Best had never

received a write-up, disciplinary measure, or even had a discussion with Preston or Robison

about job performance concerns; she had received, at a minimum, satisfactory ratings on

her evaluations. After the April 2017 meeting, Robison avoided interacting with Best.

5
Robison testified that he was instructed by the Deputy Secretary of Behavioral Health

Administration to have no further contact with Best.

In the summer of 2017, Robison was promoted to Chief of Hospital Administration

overseeing all MDH Psychiatric Hospitals. In this new role, Robison supervised all state

hospital CEOs and oversaw reassignments between the facilities. 3 Preston left Perkins

shortly thereafter for a position at Spring Grove. Chris Irwin (“Irwin”) took Robison’s

place as CEO of Perkins. 4 In Preston’s vacancy, under the direction of Irwin, Best filled

Preston’s position; she was selected to be the acting DON. Notably, Best did not want this

role because she felt like “there was a target on her back”; the position was ‘at-will,’ so she

could be terminated without cause. From November 2017 through December 2018, the

record demonstrates that the nursing leadership at Perkins was experiencing internal

conflict. Irwin held meetings with Best, Preston, Bailey, Rich, Fogan, and other nursing

staff members to attempt to address the issues.

D. Best’s Reassignment

In December of 2018, Robison began emailing with Fogan and Dwain Shaw

(“Shaw”), 5 the CEO of Spring Grove about reassigning Best from Perkins to Spring Grove.

3
In September of 2018, Robison, along with other CEOs of MDH facilities, received a
letter from the Secretary of the Maryland Department of Health delegating CEOs of all
Maryland State hospitals, and Robison with appointing authority. This authority was
renewed in October of 2019. The appointing authority gave Robison, Shaw, Irwin, and the
other named officials the power to effectuate transfers between the facilities, and stipulated
the processes that the officials must follow prior to imposing any disciplinary action.
4
Irwin served in this role until he was replaced by Marianne Fogan (“Fogan”).
5
Shaw was MDH’s designated government representative at trial.
6
Robison proposed exchanging Best with an ADON from Spring Grove, Adesina Abimbola

(“Abimbola”), with an effective date of January 2, 2019. Both Fogan and Shaw were in

favor of the exchange of Best for Abimbola. On January 10, 2019, Robison emailed Fogan

and Shaw again, altering the employee exchange to instead include Best for Evangeline

Okechukwu (“Okechukwu”).

On January 11, 2019, the exchange had yet to occur; Best was called into Fogan’s

office, where she met with Fogan and Rich. Fogan handed Best a memorandum signed by

Robison, informing her that she was given a “temporary re-assignment” 6 to Spring Grove,

effective Monday, January 28, 2019. Best’s receipt of this signed memorandum was her

first contact with Robison since April of 2017. When Best asked Fogan why she was being

involuntarily transferred, the only answer that Fogan could provide was “shared services.” 7

No information was shared with Best on how long the involuntary transfer would last, or

what was required of Best to go back to being an ADON at Perkins, despite her repeated

inquiries. There was no mention of any performance issue as justification for the

involuntary transfer, and Best had not been progressively disciplined as Robison previously

intimated.

6
MDH asserts that this was a temporary reassignment. Best asserts that this was an
involuntary transfer. For the sake of consistency and viewing the evidence in the light most
favorable to Best, as directed by the standard of review, we will use the term “involuntary
transfer.” See Jacobs v. Flynn, 131 Md. App. 342, 353 (2000).
7
At that time on the organizational chart, clinical services were not encompassed under
shared services, but rather, departments like information technology, HR, maintenance,
and hospital police.

7
Best did not want to work at Spring Grove because in her view, the employees there

were “less competent”; Spring Grove is a very old and not well-maintained facility; and

positions at Spring Grove held less prestige than positions at Perkins. Robison approved

the reassignment pursuant to his appointing authority.

Best filed an internal grievance regarding her involuntary transfer in August of

2019. Concurrently, Best filed two claims with the Equal Employment Opportunity

Commission (“EEOC”) complaining of acts of race-based discrimination and retaliation. 8

In October of 2020, the EEOC issued a notice informing Best of her right to sue MDH

related to the two EEOC charges. In March of 2023, Best returned to Perkins as an ADON. 9

Rather than be transferred back, Best had to reapply via the State website, and ultimately

was required to interview again.

E. Procedural Posture

In December of 2020, Best filed a lawsuit against MDH, Robison, Fogan, and Shaw.

In her complaint, which contained six counts, Best alleged that Robison had engineered

her involuntary transfer from Perkins to Spring Grove after he tried to terminate her in

April 2017. At the close of discovery, MDH moved for summary judgment. The circuit

court partially granted the motion, dismissing the three individual defendants, and all but

8
Resulting from a motion in limine filed by Best, the circuit court had issued a prior order,
that any evidence about whether there was a legal assessment by the EEOC was prohibited
from being introduced at trial.
9
Best was only able to return to Perkins once Bailey retired, as this created a vacancy at
Perkins.
8
two of the claims. The only claims that remained for trial were Best’s claims of retaliation

and race-based discrimination under Title VII and Title 20.

The case was tried without distinction between Title VII and Title 20. The jury was

asked to decide (1) whether MDH retaliated against Best when she was involuntarily

transferred from Perkins to Spring Grove; and (2) whether MDH discriminated against Best

on the basis of race when she was involuntarily transferred from Perkins to Spring Grove.

A trial was held in June of 2023. At the close of Best’s case in chief, MDH moved

for JMOL. MDH argued that the evidence was insufficient to generate a jury question on

either the retaliation or race-based discrimination claims. The circuit court reserved ruling

on MDH’s motion, directing MDH to present its case. At the close of its presentation of

evidence, MDH moved for RJMOL. The circuit court heard arguments from both sides,

and then denied MDH’s motion. 10 The case was submitted to the jury. The jury found MDH

liable to Best on both the retaliation claim and the race-based discrimination claim. The

jury awarded Best $300,000 in damages—$288,000 for emotional distress and $12,000 for

medical expenses. The circuit court entered judgment for Best in June of 2023.

MDH moved for JNOV, or in the alternative, for a new trial. In August of 2023, the

circuit court denied MDH’s motion. MDH noted this timely appeal of the denial of

10
After MDH moved for RJMOL, Best testified as a rebuttal witness. After Best’s rebuttal
testimony, MDH moved for RJMOL again to preserve its motion.

9
JNOV. 11 We will provide and incorporate additional facts as they become relevant to the

resolution of the questions presented.

STANDARD OF REVIEW

“A party is entitled to a judgment notwithstanding the verdict (JNOV) when the

evidence at the close of the case, taken in the light most favorable to the nonmoving party,

does not legally support the nonmoving party’s claim or defense.” Jacobs v. Flynn, 131

Md. App. 342, 353 (2000) (citing Bartholomee v. Casey, 103 Md. App. 34, 51 (1994), cert.

denied, 338 Md. 557 (1995)). In reviewing the denial of a JNOV, “[a]n appellate court

performs the same task as the trial court, affirming the denial of the motion for judgment,

if there is any evidence, no matter how slight, that is legally sufficient to generate a jury

question.” Steamfitters Loc. Union No. 602 v. Erie Ins. Exch., 469 Md. 704, 726 (2020)

(internal citation and quotation marks omitted).

“In a civil case, the evidence is legally sufficient to support a finding in support of

the prevailing party if, on the facts adduced at trial viewed most favorably to that party,

any reasonable fact finder could find the existence of the elements of the cause of action

by a preponderance of the evidence.” Univ. of Md. Med. Sys. Corp. v. Gholston, 203 Md.

App. 321, 329 (2012) (citing Hoffman v. Stamper, 385 Md. 1, 16 (2005)). “[I]f the evidence

does not rise above speculation, hypothesis, and conjecture, and does not lead to the jury’s

11
Although MDH is appealing the circuit court’s denial of JNOV or in the alternative, for
a new trial, their appeal only covers the denial of JNOV. Throughout its brief, MDH relies
on the sufficiency of the evidence standard associated with JNOV and makes no arguments
regarding the denial of the motion for a new trial. Accordingly, we will not address the
standard for a new trial.
10
conclusion with reasonable certainty[,]” then the denial of the JNOV was error. Scapa

Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503 (2011) (internal citation and quotation

marks omitted). However, “[i]f the record discloses any legally relevant and competent

evidence, however slight, from which the jury could rationally find as it did, we must affirm

the denial of the motion.” Jacobs, 131 Md. App. at 353.

DISCUSSION

I. THE EVIDENCE WAS NOT SUFFICIENT TO SUPPORT BEST’S RETALIATION
CLAIMS.

A. Additional Facts

In early 2019, Best emailed then-Governor Hogan and then-Secretary of Health,

Neall (Robison’s direct supervisor), expressing her dissatisfaction with the reassignment

and requesting to be transferred out of the Behavioral Health Administration. In February

of 2019, the head of MDH’s HR Department, Jennifer McMahan (“McMahan”) responded

on behalf of then-Secretary Neall, explaining that they would not be granting Best’s

transfer request, and encouraged Best “to take [her] talents and abilities to this new

assignment, use this opportunity to continue to learn and grow, and to impart [her] skill

and knowledge to staff under [her] supervision.”

When Best was temporarily reassigned to Spring Grove, she retained her ADON

job classification—grade twenty-one, step twenty—and her salary. The nursing

classifications at Perkins are one grade higher than all other state hospital grades and

classifications; ADONs at hospitals other than Perkins, such as Spring Grove, were a grade

twenty. This difference between grades is because Perkins is a maximum-security hospital

11
while Spring Grove is a medium-security hospital. Further, patients at Spring Grove are

typically accused of misdemeanor crimes, not felonies or other violent crimes as those at

Perkins.

B. The Parties’ Contentions

MDH contends that the evidence adduced at trial was legally insufficient for Best

to be able to meet all three elements of a retaliation claim under Chappell. Chappell v. S.

Md. Hosp., Inc., 320 Md. 483 (1990). MDH argues that the evidence was insufficient for

the jury to find that Best’s complaint to Preston and her OIG complaint were protected

oppositional activities because the complaints were not based on race or any other protected

class. 12

In response, Best contends that the evidence was legally sufficient to demonstrate

that she met the elements required to prove a retaliation claim. Best asserts that the evidence

was legally sufficient to show that her complaint to the OIG was a protected activity. 13

12
Because Best cannot meet the first element of a retaliation claim, we resolve this issue
without addressing the other contentions. Had we not been able to do so, MDH avers that
even if the OIG complaint was a protected activity, the evidence was legally insufficient to
show that Best’s involuntary transfer was an adverse employment action because she was
not demoted and her pay remained the same. MDH also asserts that the evidence was
insufficient to show a causal connection between Best’s protected activity and her
involuntary transfer, as she failed to demonstrate either theory of causal connection:
because there was not enough temporal proximity between her OIG complaint and her
reassignment, and because Best failed to present legally sufficient evidence of “but-for”
causation.
13
Best’s other contention is that her involuntary transfer was an adverse employment action
because, although she did not lose any pay, the terms and conditions of her employment
substantially changed when she was involuntarily transferred from Perkins to Spring
Grove. Best also asserts that the evidence was legally sufficient to demonstrate that there
was a causal connection between her complaint to the OIG and her involuntary transfer via
12
C. Applicable Law

i. Background Law on Retaliation Claims

Federal law provides that it is an illegal employment practice “for an employer to

discriminate against any of [its] employees . . . because [the employees have] opposed any

practice made an unlawful employment practice by this subchapter, or because [the

employees have] made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.A. § 2000e-3(a)

(emphasis added). Additionally, in its section on the prohibition against retaliation, Title

20 of the Maryland State Government Article provides:

[a]n employer may not discriminate or retaliate against any of its employees
or applicants for employment, . . . because the individual has: (1) opposed
any practice prohibited by this subtitle; or (2) made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subtitle.

Md. Code (1984, 2021 Repl. Vol.), State Government (“SG”) § 20-606(f) (emphasis

added).

To make a prima facie retaliation claim under § 2000e-3(a), a plaintiff must establish

that “(1) the plaintiff engaged in a protected activity, such as filing a complaint with the

EEOC; (2) the employer acted adversely against the plaintiff; and (3) the protected activity

was causally connected to the employer’s adverse action.” Okoli v. City of Balt., 648 F.3d

216, 223 (4th Cir. 2011); see also Lockheed Martin Corp. v. Balderrama, 227 Md. App.

a “but-for” theory of causation, noting that temporal proximity is not the only applicable
theory to demonstrate causal connection.
13
476, 504 (2016). The Maryland statute tracks the language of § 2000e-3(a). Chappell, 320

Md. at 496. Moreover, Maryland case law holds that,

[i]n the absence of legislative intent to the contrary, we read § 16(f)[14] of the
state act in harmony with § 2000e–3(a) of the federal statute, and therefore
construe the two provisions to fulfill the same objectives. In this regard, we
may look to court decisions interpreting § 2000e–3(a).

Id. at 494. Thus, we may utilize the same criterion as applied under Title VII to “determine

whether a prima facie violation of the state law was established.” Id. at 496.

ii. Law on Protected Activities

Both § 2000e-3(a) and § 20-606(f) of the State Government Article of the Maryland

Code differentiate between two forms of protected activities—participation and opposition.

Gaines v. Balt. Police Dep’t, 657 F. Supp. 3d 708, 743 (D. Md. 2023) (referencing EEOC

v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005)). Section 2000e-3(a) of the

United States Code, like section 20-606(f) of the State Government Article, makes it

unlawful for an employer to discriminate against an employee either “‘because [the

employee] has opposed any practice made an unlawful employment practice’ under Title

VII (the opposition clause), or ‘because [the employee] has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing’ under

Title VII (the participation clause).” Chappell, 320 Md. at 494 (quoting 42 U.S.C.A.

§ 2000e–3(a)).

The opposition and participation clauses of § 2000e–3(a) have been liberally
applied by the courts to shield employees who speak out against an

14
Section 16(f) of Article 49B was reorganized and recodified in 2009 at section 20-606(f)
of the State Government Article of the Maryland Code. See 2009 Md. Laws 567. Although
the statute number has changed, the text of the statute remains the same.
14
employer’s unlawful employment practices, the obvious rationale being that
without some guaranteed protection to assert equal employment rights, the
ultimate purpose of the act would be severely limited.

Id.

Only opposition is relevant here. “[P]rotected oppositional activities may include

staging informal protests and voicing one’s own opinions in order to bring attention to an

employer’s discriminatory activities, as well as complaints about suspected violations.”

Navy Fed. Credit Union, 424 F.3d at 406 (internal citations and quotation marks omitted);

see also Edgewood Mgmt. Corp. v. Jackson, 212 Md. App. 177, 201–02 (2013) (citing

Crawford v. Metro. Gov’t of Nashville, 555 U.S. 271, 276 (2009) (applying the same

standard and clarifying that staging an informal protest includes complaining to one’s

supervisor)). All a plaintiff must show is that “he or she held a good faith, subjective, and

objectively reasonable belief that the employer engaged in discriminatory conduct.”

Edgewood, 212 Md. App. at 202 (citing Peters v. Jenney, 327 F.3d 307, 320–21 (4th Cir.

2003)).

In sum, for an employee’s complaint to be a protected activity, the complaint must

concern the employer’s allegedly discriminatory conduct against a protected class.

Edgewood, 212 Md. App. at 201–02 (citing Crawford, 555 U.S. at 276); McIver v.

Bridgestone Americas, Inc., 42 F.4th 398, 411 (4th Cir. 2022) (holding that when an

employee’s complaints concerned an unlawful employment practice—tampering—and

were not linked to any racial motivation or other protected class, they were not protected

activities under Title VII).

D. Analysis

15
Best contends that her complaint to Preston and then to the OIG constitutes a

protected oppositional activity. For Best’s complaint to be a protected oppositional activity,

it must have been on the basis of race or some other protected status or class. See

Edgewood, 212 Md. App. at 201–02. Best’s complaint to Preston and the OIG can be

summarized into two categories of concern: that the three new hires lacked the requisite

expertise necessary to do their jobs effectively and that they were getting paid higher

salaries than nurses already employed at Perkins.

The record does not contain any legally relevant and competent evidence, in the

form of either records or testimony, however slight, from which the jury could rationally

find by the preponderance of the evidence, that the complaint was on the basis of race or

another protected class. The record lacks any text, receipt, or other documentation of the

language Best used, or quoted statements, when she made the OIG complaint. As such, the

jury could not look to the OIG complaint to see whether Best alleged retaliation on the

basis of race. Further, the record is devoid of any other documentation from Preston or the

OIG regarding her complaint regarding the three new hires.

The only documentary records provided to the jury were Best’s email that she sent

to then-Secretary Neall, and HR Director for MDH McMahan’s response on behalf of then-

Secretary Neall. In her email, Best discussed her desire to be transferred back to Perkins,

her belief that her involuntary transfer was illegal, and her belief that she was in a hostile

work environment; Best never suggested that any of this occurred because of her race. In

McMahan’s response, there was also nothing demonstrating that Best complained that she

was retaliated against on the basis of race.

16
In her testimony, Best did not suggest that her OIG complaint was on the basis of

race, or any other protected class, as required to successfully plead a retaliation claim under

Title VII and Title 20. Although the three new hires were African American, there was no

evidence to show that Best raised race as an issue in her complaint. For instance, on direct

examination, when asked why Best made an anonymous complaint to the OIG, Best

testified that the three new employees

got hired with no experience at a registered nurse supervisor position with no
prior maximum security forensic psychiatric experience and [that she]
believe[d] that they were getting a higher rate of pay than several nurses and
nursing staff and supervisors who had been working at Perkins for several
years, [] with much more experience than what the three individuals from
Levindale had.

On cross examination, Best was also asked if she mentioned race as a factor in her transfer

in the letter that she sent to then-Governor Hogan, to which she replied, “I don’t believe I

did.” The attorney for MDH questioned Best specifically on what formed the basis for her

OIG complaint, asking, “[s]o, do you remember testifying [in your deposition] that

specifically your complaint to the OIG was about [Preston] and her hiring people from

Levindale?” to which Best replied, “[y]es, that’s what I testified to.”

On redirect, Best affirmed the statements that she made on direct, that she failed to

mention race or any other protected class, and only discussed the three new hires’ lack of

expertise and their pay in her complaint. Also on redirect, Best affirmed that the text of her

email to then-Governor Hogan did not refer to race. In her email Best stated, “I truly believe

that due to past issues I have had with [] Robison, this transfer was retaliatory.” Throughout

the entirety of Best’s testimony, no evidence provided to the jury indicated that Best, either

17
to Preston or in her OIG complaint, ever used the words or phrases ‘race,’ ‘discrimination,’

or ‘protected class or status.’ 15 Thus, there was no legally sufficient evidence upon which

the jury could conclude that Best’s complaint was a protected activity under Title VII or

Title 20.

Best asserts that there is legally sufficient evidence, such that her complaint to the

OIG was understood by MDH as alleging race-based discrimination which was met with

race-based retaliation. In support of her contention, Best cites to Burgess v. Bowen, 466 F.

App’x 272 (4th Cir. 2012). In Burgess, Burgess alleged that she suffered unlawful

retaliation on the basis of race when she was terminated and again when she was denied a

transfer. Burgess, 466 F. App’x at 278, 280. The parties contested whether Burgess had

engaged in a protected activity. Id. at 282. Burgess contended that she engaged in two

protected acts, the first, when she verbally complained up the chain of command that she

and another coworker were being “targeted,” and the second, when she questioned the

“fairness and equality” of her coworker’s termination. Id. In response to these complaints,

Burgess’s supervisor almost immediately asked to consult with the organization’s legal

counsel after receiving Burgess’s complaint, and the subsequent discussions were

regarding “EEO” issues. Id. Further, the evidence demonstrated that Burgess had also

15
One other witness that testified at trial was Kayla Smith (“Smith”), Best’s Licensed
Clinical Social Worker. Smith testified as an expert, speaking to the mental health struggles
that Best experienced as a result of MDH’s involuntary transfer of her. Smith testified that
she and Best spoke a lot about Best’s work, how Best felt mistreated, and about betrayal
and retaliation, especially that Best “felt she had a target on her back.” However, when
Smith was asked, “[Best] never mentioned her race as the basis for these things happening
at work in two years, right[],” Smith replied, “[n]ot that I remember.”
18
already raised concerns to others about racial discrimination. Id. at 282–83. Thus, the court

in Burgess found that the organization understood, or at the very least should have

understood, that Burgess was complaining of discriminatory conduct. Id. at 283. Applying

the standard from Burgess here, there is no evidence that MDH either understood or should

have understood that Best was complaining of retaliation on the basis of her race.

i. There is no evidence that MDH understood that Best’s retaliation
complaint was based on race.

An examination of the MDH employees’ testimony demonstrates that there was no

evidence that MDH understood Best’s complaint of unlawful retaliation was race-based.

Robison testified at trial that he was not aware that Preston had meetings with Bailey and

Best about “a number of employees that had been coming over from Levindale.” Further,

Robison testified that no one told him there were concerns about the hiring practices at

Perkins. Consequently, Robison could not have understood Best’s complaints as race-

based, if he did not know there were complaints to begin with.

Rich also testified regarding the topics of the OIG investigation and the results of

that OIG investigation, none of which were related to race. Rich testified that the only topic

she recalled the OIG investigators discussing with her was the three new hires’

qualifications. Rich indicated that the sole outcome of the OIG investigation were changes

to Perkins’ hiring processes but not Perkins’ hiring policies. Rich added that the changes

to Perkins’ hiring processes were to make sure that there was a consistent process for all

interviews, not solely in nursing, and to accomplish this, they reviewed and made changes

to the scoring matrix used when conducting interviews for Perkins.

19
Additionally, a review of Shaw’s, Fogan’s, McMahan’s, and Bailey’s testimony

demonstrates that none of them understood Best’s retaliation complaint to be on the basis

of race. Shaw testified that there was no discussion of race or the 2017 OIG audit in any of

the conversations surrounding the reassignment. Fogan testified that as a result of the OIG

investigation, all three of the new hires were found to be qualified and that none of them

were dismissed, with no discussion of race. McMahan testified that she was never aware

that Best made the complaint to Preston or to the OIG about the three nurses’ qualifications

or that they were given higher salaries. Bailey testified that she was getting an influx of

complaints from nurses “who had been there, at Perkins, for years and had to train the three

that came from Levindale, who were [] making more money than them [but who] didn’t

have the knowledge, skills[,] or abilities to perform the job.” Bailey testified that, due to

these complaints, she learned of the problems with pay and inexperience; hence, she had

no reason to know that Best’s complaints were race-based. Bailey also testified that she

was not asked any questions by the OIG investigator and was not privy to who was

interviewed by the OIG investigator. As such, because no employees knew that Best’s

complaint to Preston or the OIG was race-based, there is no evidence that MDH understood

Best’s retaliation complaint to be on the basis of race.

ii. There is no evidence that MDH should have understood that Best’s
retaliation complaint was based on race.

Best asserts that her removal from interview panels in temporal proximity to the

requirement that she attend diversity and cultural sensitivity training demonstrates that

MDH should have understood that Best’s opposition to an unlawful employment practice

20
was on the basis of race. While it is true that Best was taken off interview panels and was

required to attend diversity and cultural sensitivity training, there is nothing to demonstrate

that either of these decisions were made because MDH understood Best’s complaint to

Preston or the OIG as alleging race-based retaliation. Moreover, as MDH observes,

requiring an employee to attend diversity and cultural sensitivity training is a common and

lawful employment practice.

There was testimony elicited at trial regarding an email Best sent to then-Governor

Hogan, in which Best referred to the EEOC complaint that she filed but made no mention

of race. Even given this statement, Burgess remains distinguishable from the case before

us for two primary reasons. First, although Best filed EEOC complaints, the jury was not

permitted to consider evidence of such complaints. See supra note 8. Second, Best filed

the initial EEOC complaint one month after she was involuntarily transferred, and the

second EEOC complaint one year after she was involuntarily transferred. Not only are the

EEOC complaints not the protected oppositional activity, as Best filed them after the

adverse action occurred, but they also cannot serve as evidence that MDH should have

understood that Best was complaining of discriminatory conduct when she complained to

Preston and to the OIG because the jury was not allowed to consider evidence regarding

the EEOC complaints.

Therefore, Burgess is distinguishable from the case before us. There is not legally

sufficient evidence, even slight, such that a rational juror could conclude that MDH should

have known at the time that Best complained, that she was complaining of retaliation on

21
the basis of her race. Because there was no legally sufficient evidence that Best met the

first element of her retaliation claim, we will not address the other elements.

II. THE EVIDENCE WAS SUFFICIENT TO SUPPORT BEST’S RACE-BASED
DISCRIMINATION CLAIMS.

A. Additional Facts

After starting at Spring Grove, Best met with her new supervisor, Wendy Tarbalouti

(“Tarbalouti”), the Chief Nursing Officer 16 of Spring Grove. Tarbalouti informed Best that

her temporary reassignment had to do with a “Nigerian conflict” at Spring Grove. Best

learned that ADONs at Spring Grove, Abimbola and Okechukwu, came from two different

Nigerian tribes: Abimbola came from the Yoruba tribe, while Okechukwu was from the

Igbo tribe. Cultural conflicts caused Abimbola and Okechukwu to struggle to work

together. The record supports the contention that Abimbola “had a stronghold across the

hospital system” and the prominence of the Yoruba tribe “made it a little bit challenging

for some of the ADONs to get things done because of the [] tribal loyalties to [Abimbola].”

B. The parties’ contentions

MDH contends that Best did not carry the evidentiary burden to support her race-

based discrimination claim pursuant to Coleman. Coleman v. Md. Ct. of Appeals, 626 F.3d

187 (4th Cir. 2010). In support of this argument, MDH asserts that the evidence was

insufficient to show that Best’s temporary, involuntary reassignment was an adverse

16
The Chief Nursing Officer is akin to the DON, as functionally, the positions require the
employee to perform the same tasks and were both classified as senior program
management positions. Where the positions slightly differ is in their respective grades,
which meant the salaries could also differ.
22
employment action. MDH also contends that the evidence was insufficient for the jury to

find that Best was treated differently from similarly situated non-White employees. MDH

argues that after it demonstrated a legitimate, nondiscriminatory reason for Best’s

temporary reassignment, Best failed to meet the burden of persuading the jury that MDH’s

explanation for its reassignment of Best was merely a pretext for discrimination.

In response, Best contends that the evidence was legally sufficient to demonstrate

that she meets all four elements of her race-based discrimination claim. Best asserts that

the evidence was legally sufficient to show that her temporary reassignment was an adverse

employment action, citing recent precedent from the Supreme Court of the United States,

Muldrow v. City of St. Louis, Missouri, which was not yet published when MDH filed its

initial brief. See generally 601 U.S. 346 (2024). Best also contends that she presented

legally sufficient evidence such that a reasonable juror could conclude based on a

preponderance of the evidence that MDH employees similarly situated to Best were treated

more favorably. Best then concludes her argument with the opposite assertion of MDH:

she met her burden of persuading the jury that MDH’s explanation for its involuntary

transfer of Best was merely a pretext for discrimination.

In its reply brief, MDH recognizes the holding of Muldrow in a footnote, but fails

to incorporate it into its argument. Instead, MDH discontinues its argument that Best’s

reassignment was not an adverse employment action.

C. Background Law on Race-Based Discrimination Claims

Under Title VII, it is an unlawful employment practice for an employer “to fail or

refuse to hire or to discharge any individual, or otherwise to discriminate against any

23
individual with respect to [the employee’s] compensation, terms, conditions, or privileges

of employment, because of such individual’s race . . . .” 42 U.S.C.A. § 2000e-2(a).

Maryland law directly parallels the federal law. See SG § 20-606(a)(1). A complainant may

meet the burden of establishing a prima facie case of discrimination under the federal and

state statutes by presenting direct or circumstantial evidence. Dobkin v. Univ. of Baltimore

Sch. of L., 210 Md. App. 580, 591–92 (2013).

“Evidence is ‘direct’ . . . when it consists of statements by a decisionmaker that

directly reflect the alleged animus and bear squarely on the contested employment

decision.” Williams v. Md. Dep’t of Hum. Res., 136 Md. App. 153, 163–64 (2000) (quoting

Febres v. Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000)). “Absent direct

evidence, the elements of a prima facie case of discrimination under Title VII are: (1)

membership in a protected class; (2) satisfactory job performance; (3) adverse employment

action; and (4) different treatment from similarly situated employees outside the protected

class.” Coleman, 626 F.3d at 190; see also Dobkin, 210 Md. App. at 592–93 (referencing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). 17

D. Analysis

In both its initial brief and its reply brief, MDH does not contend that Best fails to

meet the first two elements of a race-based discrimination claim; hence, we will discuss

them only briefly here. Best meets the first element, membership in a protected class,

because she brought her discrimination claim on the basis of race. With respect to

17
Though not expressly referenced by either party, both parties frame their analysis using
the burden-shifting framework established in McDonnell Douglas.
24
satisfactory job performance, a plaintiff need not “show that he was a perfect or model

employee. Rather, a plaintiff must only show that he was qualified for the job and that he

was meeting his employer’s legitimate expectations.” Haynes v. Waste Connections, Inc.,

922 F.3d 219, 225 (4th Cir. 2019). The record easily provides legally sufficient evidence

from which a reasonable juror could conclude that Best performed satisfactorily, namely,

her performance evaluations. In Best’s performance evaluations she received either

“satisfactory” or “outstanding.” Robison himself testified that Best is a “tremendously

bright and smart clinician.” Shaw testified that Best was doing a good job, was a stellar

nurse, and did excellent work. Moreover, there was testimony that Best never received

progressive discipline, and no progressive discipline records were presented to the jury.

As such, we will address the third and fourth elements respectively: adverse

employment action, and different treatment from similarly situated employees outside the

protected class. We will also address MDH’s summary contention that the evidence was

insufficient to support a conclusion that Best’s assignment was racially discriminatory

under the McDonnell Douglas burden-shifting framework.

As a preliminary matter, the standard for what constitutes an adverse employment

action has changed. Until April of 2024, there were two paramount cases concerning the

manner in which a transfer can constitute an adverse employment action for a race-based

discrimination claim under Title VII and Title 20 in Maryland: Boone v. Goldin, 178 F.3d

253 (4th Cir. 1999) and James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371 (4th Cir.

2004). In April of 2024, the Supreme Court of the United States, in Muldrow v. City of St.

Louis, Missouri, resolved a circuit split regarding the standard for when a reassignment or

25
transfer can meet element three, an adverse employment action. 601 U.S. 346, 353 (2024)

(discussing the circuit split and the varying phrases in the transfer/reassignment context,

such as “significant level of harm,” versus “some harm.”). Under Boone and Booz-Allen, a

“reassignment [could] only form the basis of a valid Title VII claim if the plaintiff [could]

show that the reassignment had some significant detrimental effect.” Boone, 178 F.3d at

256 (emphasis added); Booz-Allen, 368 F.3d at 376. Muldrow abrogated Boone and Booz-

Allen. Muldrow, 601 U.S. at 353. Accordingly, we apply the standard from Muldrow. 18

i. Background on Muldrow v. City of St. Louis, Missouri

In Muldrow, the plaintiff, Sergeant Muldrow (“Muldrow”), sued the City of St.

Louis (“the City”) when her employer, the St. Louis Police Department (“the

18
“The filing of a lawsuit does not freeze the state of the law from the date of filing.” Md.
Mil. Dep’t v. Cherry, 382 Md. 117, 129 (2004). Both the Maryland Supreme Court and the
Supreme Court of the United States hold that “[i]n the overwhelming majority of cases, a
judicial decision sets forth and applies the rule of law that existed both before and after the
date of the decision.” State v. Daughtry, 419 Md. 35, 77 (2011); see also James B. Beam
Distilling Co. v. Georgia, 501 U.S. 529, 535 (1991) (stating that retroactive application of
judicial decisions is “overwhelmingly the norm” and is “in keeping with the traditional
function of the courts to decide cases before them based on their best current understanding
of the law”) (plurality opinion).

Although James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 . . . (1991),
did not produce a unified opinion for the Court, a majority of Justices agreed
that a rule of federal law, once announced and applied to the parties to the
controversy, must be given full retroactive effect by all courts adjudicating
federal law. In announcing the judgment of the Court, Justice Souter laid
down a rule for determining the retroactive effect of a civil decision: After
the case announcing any rule of federal law has ‘appl[ied] that rule with
respect to the litigants’ before the court, no court may ‘refuse to apply [that]
rule . . . retroactively.’

Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 96 (1993); Polakoff v. Turner, 385 Md. 467,
486–87 (2005) (applying the holding of Harper as to recently decided cases).
26
Department”), transferred her from one job to another because of her sex. Id. at 350. From

2008 through 2017, Muldrow worked as a plainclothes police officer in the Department’s

specialized Intelligence Division (“the Division”). Id. While in this role, Sergeant Muldrow

investigated public corruption and human trafficking cases, oversaw the Gang Unit, and

served as head of the Gun Crimes Unit. Id. Moreover, because of her position, Muldrow

was deputized as a Task Force Officer with the Federal Bureau of Investigation (“FBI”);

this status granted her FBI credentials, an unmarked take-home vehicle, and the authority

to pursue investigations outside the City. Id. In 2017, a new Division Commander, Captain

Michael Deeba (“Captain Deeba”), was appointed. Id. at 351. Despite the outgoing

Division Commander’s remarks—that Muldrow “was a workhorse” and that “if there was

one sergeant he could count on in the Division, it was Muldrow”—Captain Deeba asked

the department to transfer Muldrow, stating that a male police officer “seemed a better fit

for the Division’s ‘very dangerous’ work.” Id.

The Department transferred Muldrow involuntarily, despite her opposition. Id. In

her new position, although her “rank and pay remained the same [], her responsibilities,

perks, and schedule did not. Instead of working with high-ranking officials on the

departmental priorities lodged in the Division, Muldrow now supervised the day-to-day

activities of neighborhood patrol officers[,]” which meant handling arrests, reviewing

reports, managing other administrative matters, and some patrol work. Id. Further resulting

from the involuntary transfer, Muldrow lost her FBI status, the unmarked take-home

vehicle, and a regular schedule. Id. Prior to her involuntary transfer, Muldrow worked a

“traditional Monday-through-Friday” work week, while after the involuntary transfer,

27
Muldrow’s schedule changed to “a ‘rotating schedule’ that often involved weekend shifts.”

Id.

Muldrow brought a Title VII suit challenging the transfer, alleging that the City, in

its involuntary transfer of her, discriminated against her based on sex with respect to the

terms or conditions of her employment. Id. The City moved for summary judgment. Id. at

352. The district court granted the City’s motion for summary judgment, pursuant to

precedent which stated that “Muldrow needed to show that her transfer effected a

‘significant’ change in working conditions producing ‘material employment

disadvantage.’” Id. The district court held that Muldrow could not meet this heightened

injury standard because she did not experience a change in her salary or rank. Id. The

district court held that Muldrow’s “loss of [] networking [opportunities] available in

Intelligence was immaterial because she had not provided evidence that it had harmed her

career prospects. And given her continued supervisory role, she had not suffered a

significant alteration to her work responsibilities.” Id. (internal quotations omitted). The

district court also held that the changes to Muldrow’s schedule appeared to be minor

alterations of employment, rather than material harms. Id. The Court of Appeals for the

Eighth Circuit affirmed. Id.

The Supreme Court of the United States granted certiorari to resolve a circuit split

regarding what level of harm a plaintiff must show to prove that a transfer or a reassignment

is an adverse employment action. Id. at 353. In resolving the circuit split, the Court clarified

that “[t]o make out a Title VII discrimination claim, a transferee must show some harm

respecting an identifiable term or condition of employment.” Id. at 354–55 (emphasis

28
added). Vacating the judgments of the district court and the Eighth Circuit, the Court held,

“[w]hat the transferee does not have to show, according to the relevant text, is that the harm

incurred was ‘significant.’” Id. at 355. The Court reasoned that adding the word

‘significant’ to the level of harm standard, as the district court did in Muldrow’s case, or

as the Fourth Circuit did in Boone and Booz-Allen, was imposing a new requirement on a

Title VII claimant, “so that the law as applied demand[ed] something more . . . than the

law as written.” Id. The Court noted that “there is nothing to otherwise establish an elevated

threshold of harm . . . . [a]nd that difference can make a real difference for complaining

transferees. Many forced transfers leave workers worse off respecting employment terms

or conditions.” Id. The Court explained that Title VII “flatly prevents injury to individuals

based on status, without distinguishing between significant and less significant harms.” Id.

at 358 (internal citation and quotation marks omitted).

According to Muldrow, the language of § 2000e-2(a)(1) requires only that Best

show that her involuntary transfer from Perkins to Spring Grove brought about some

“disadvantageous” change in an employment term or condition. Id. at 354 (citing Oncale

v. Sundowner Offshore Serv’s, Inc., 523 U.S. 75, 80 (1998)). The Court clarified that the

words ‘discriminate against’ “refer to ‘differences in treatment that injure’ employees.” Id.

(quoting Bostock v. Clayton Cnty., 590 U.S. 644, 681 (2020)). “[I]n the typical transfer

case, [] ‘worse’ treatment must pertain to . . . employment ‘terms [or] conditions.’” Id.

(quoting § 2000e-2(a)(1)). The Court also noted that “the ‘terms [or] conditions’ phrase . . .

is not used in the narrow contractual sense; it covers more than the economic or tangible.”

Id. (internal citations omitted).

29
In Muldrow, the Court highlighted the changes to Muldrow’s terms and conditions

of employment, narrowing in on the fact that Muldrow

was moved from a plainclothes job in a prestigious specialized division
giving her substantial responsibility over priority investigations and frequent
opportunity to work with police commanders . . . to a uniformed job
supervising one district’s patrol officers, in which she was less involved in
high-visibility matters and primarily performed administrative work.
[Muldrow’s] schedule became less regular, often requiring her to work
weekends; and she lost her take-home car . . . . It does not matter, as the
courts below thought (and Justice Thomas echoes), that her rank and pay
remained the same, or that she still could advance to other jobs.

Id. at 359.

ii. The evidence was sufficient to show that Best’s reassignment was an
adverse employment action.

Best’s contention, that her transfer from Perkins to Spring Grove caused her some

harm by changing the terms and conditions of her employment, is strikingly alike to that

in Muldrow. Best met her burden by presenting legally sufficient evidence, such that a

reasonable juror could find that her transfer from Perkins to Spring Grove “left her worse

off[,]” id. at 359, and caused her “some harm respecting an identifiable term or condition

of employment.” Id. at 354–55.

Regarding the changes to the conditions of Best’s employment, Best demonstrated

that working in Spring Grove was not merely a unit change because Spring Grove deals

with different types of patients than Perkins. Other MDH employees, including Shaw and

Rich, testified corroborating this difference. Although Best retained her grade, step, and

pay when she was involuntarily transferred to Spring Grove, the fact that Spring Grove’s

ADONs were a lower grade and step in the State compensation system demonstrates that

30
the positions were not of the same caliber, just as demonstrated in Muldrow. Id. at 359.

Further, while Spring Grove’s facilities are larger—it is the largest state facility in

Maryland—the hospital itself is less secure than Perkins, and it has a lower security

designation than Perkins.

Another change to the conditions of Best’s employment resulting from her transfer

was a change to her schedule. This is also analogous to Muldrow. See id. at 359. Post-

involuntary transfer to Spring Grove, Best was required to work more hours and had a

different schedule at Spring Grove. Best testified that at Perkins she worked mostly

Monday through Friday until 4:30 p.m. However, at Spring Grove, Best was expected to

work at least one weekend a month. Although Best’s weekend hours were not in addition

to her regular work week, as she could trade out other days and still have two days off a

week, requiring Best to work weekends was a significant schedule change. There were also

occasions when Best was required to work past her shift end time to provide nursing

coverage, which was never required of her at Perkins. These changes to the conditions of

Best’s employment occurred irrespective of the Covid-19 Pandemic. 19

Best also presented legally sufficient evidence, such that a reasonable juror could

find that there were changes to the terms of employment as a result of the involuntary

19
Best discusses the change in responsibilities that occurred when she was transferred to
Spring Grove during the Covid-19 Pandemic, as she was assigned to the infection control
department. Despite these substantial changes to the terms and conditions of her
employment, there was no evidence demonstrating whether she would have incurred this
responsibility at Perkins had she not been involuntarily transferred to Spring Grove. Thus,
we will not analyze the changes to the terms and conditions of Best’s employment related
to Covid-19—nor do we need to—as she experienced at least some harm under the standard
from Muldrow.
31
transfer. An in-depth review of Best’s position descriptions between the two facilities also

reveals other significant differences between her stated responsibilities, who she was

responsible for supervising, and her working conditions. This change too, is comparable to

Muldrow. Id. at 359. While at Perkins, Best’s work schedule was classified as “[p]ermanent

day shift,” yet while involuntarily at Spring Grove, Best’s work schedule was classified as

“rotating shift,” and “other,” which provided: “Emergency Essential, Capable of working

eve/night and weekends as necessary as directed by the Chief Nursing Officer/designee.

Employee may be subject to call-in and overtime based on staffing needs.” Additionally,

the “Essential Job Functions” and the “percentage of time and/or weight of importance,”

the “Level, Frequency, and Purpose of Work Contacts,” and the “Working Conditions”

differed between Best’s job at Perkins and her job at Spring Grove.

While at Spring Grove, Best was assigned to medical psychiatric units which

required different levels of care, beyond psychiatry. This was a significantly different job

from her role at Perkins, and Best testified regarding this, stating: “[i]t was in a completely

different role, a completely different job.” Best also testified that the unit she was assigned

to at Spring Grove was “like a nursing home for severely medically compromised patients,

some of them in the last stages of their life.” At Perkins, Best’s job was to “provide trauma-

informed care so that the patients [could] recover and meet their maximum level of

functioning.” Best went on to testify that at Perkins, she “focused on helping people recover

and helping staff perform[,]” whereas, while at Spring Grove, “many of the patients’ goal

was not to recover but, it was their end of life.”

32
All Best was required to show was “some injury,” and that the transfer left her worse

off, “but need not have left her significantly so.” Muldrow, 601 U.S. at 359. Therefore,

because Best presented legally sufficient evidence by which a reasonable juror could find

that her transfer from Perkins to Spring Grove left her worse off—because it changed the

terms and conditions of her employment—she demonstrated an adverse employment

action.

iii. The evidence was legally sufficient to show that similarly situated
employees were treated more favorably than Best.

“Absent unusual evidence of overt animus, a plaintiff seeking to prove unlawful

discrimination in employment will generally need to produce evidence of comparators, or

similarly[] situated employees of a different race, color, religion, sex, or national origin

who have been treated differently.” Netter v. Barnes, 908 F.3d 932, 939 (4th Cir. 2018). 20

“Comparator evidence refers to evidence that a similarly situated individual with sufficient

commonalities on the key variables between the plaintiff and the would-be comparator to

allow the type of comparison that, taken together with the other prima facie evidence,

would allow a jury to reach an inference of discrimination.” Taylor v. Giant of Md., LLC,

423 Md. 628, 632 n. 2 (2011) (internal citations and quotation marks omitted). While there

is no bright-line rule for what makes two jobs “similar” under Title VII, courts frequently

20
Just as we did supra, we again rely on Fourth Circuit precedent. As the Supreme Court
of Maryland has stated, “we recognize the dearth of our own jurisprudence on this issue,
as well as our history of consulting federal precedent in the equal employment area.” Taylor
v. Giant of Md., LLC, 423 Md. 628, 652 (2011); see also Haas v. Lockheed Martin
Corp., 396 Md. 469, 481 n.8, (2007) (“Title VII is the federal analog to [SG § 20-606]”
and “our courts traditionally seek guidance from federal cases in interpreting Maryland’s
[SG § 20-606(a)(1)(i).]”). See supra note 14.
33
consider the job descriptions and responsibilities, whether the two employees were subject

to the same standards and reported to the same supervisor, and whether the two employees

had comparable experience and education, among other qualifications. See Spencer v. Va.

State Univ., 919 F.3d 199, 207 (4th Cir. 2019).

“[O]ne who alleges discrimination need not identify and reconcile every

distinguishing characteristic of the comparators,” Taylor, 423 Md. at 655, but “[t]he

similarity between comparators and the seriousness of their respective offenses must be

clearly established in order to be meaningful.” Lightner v. City of Wilmington, 545 F.3d

260, 265 (4th Cir. 2008). An inference of race-based discrimination can be based on a

comparison to similarly situated colleagues of different races if those colleagues were

treated more favorably under similar circumstances. Booth v. Cnty. Exec., 186 F. Supp. 3d

479, 486 (D. Md. 2016) (citing Lightner, 545 F.3d at 265).

Best is Similarly Situated to Bailey

Here, Best, a White woman, presented legally sufficient evidence such that a

reasonable juror could find that she was similarly situated to Bailey, a Black woman. C.f.

Booth, 186 F. Supp. 3d at 486 (holding that Booth failed on his prima facie discrimination

claim because he did not identify the race of his comparators); Lightner, 545 F.3d at 265

(holding that the two officers were not comparable because the male plaintiff, as the Acting

Division Commander of the Professional Standards Division, was responsible for the ethics

rules, whereas the female comparator was not a member of the Professional Standards

Division). There are many similarities between Best and Bailey. Bailey was the only other

ADON at Perkins when Best was employed there—they held the same position and

34
reported to the same supervisor, Preston. Best and Bailey both worked their way up to the

ADON position, previously holding lower-level positions in government healthcare at

Perkins and other state facilities. In terms of overall tenure working for the State, at the

time of trial, Best had twenty-five years of nursing experience and Bailey had thirty. Both

Best and Bailey sat on interview panels for potential new hires until they were removed at

the same time from this role. Neither Best nor Bailey received any progressive discipline,

and neither had been placed on performance improvement plans. Neither Best nor Bailey

wanted to hold the DON position as they both feared that Robison would use the position

for immediate firing upon beginning this role, since it is an ‘at-will’ position. Of utmost

importance, Bailey had the same meeting with Robison and Rich and learned that Robison

was seeking to terminate her employment through progressive discipline, just as he and

Rich did with Best. Consequently, there is legally sufficient evidence by which a

reasonable juror could find that Best is similarly situated to Bailey.

Best is Similarly Situated to Okechukwu

MDH asserts that Okechukwu cannot be a comparator for Best under Swaso v.

Onslow County Board of Education, and Spencer v. Virginia State University, because

Okechukwu and Best worked at different locations. 21 698 F. App’x 745 (4th Cir. 2017)

21
At oral argument, counsel for MDH asserted that Okechukwu could not be comparator
for Best because Okechukwu and Best were not similarly situated due to not having the
same supervisor. In support of this argument, MDH cited to Mitchell v. Toledo Hosp., 964
F.2d 577 (6th Cir. 1992). See also Cosby v. S.C. Prob., Parole & Pardon Serv.’s, 93 F.4th
707 (4th Cir. 2024) (citing Mitchell for this proposition). However, “[a]s Mitchell’s
progeny has long noted, plaintiffs do not need to share the same supervisor in every case,
and that comparison point is not a bar to relief in a case like this one, where the comparators
are otherwise similar in ‘all relevant respects.’” Cowgill v. First Data Techs., Inc., 41 F.4th
35
(per curiam); 919 F.3d 199 (4th Cir. 2019). However, Swaso and Spencer are distinct from

the facts before us. In Swaso, the Fourth Circuit held that “Swaso failed to provide any

factual enhancement regarding the alleged comparators . . . that would permit the court to

reasonably infer their similarity.” Swaso, 698 F. App’x at 749. In Spencer, the Fourth

Circuit held that Spencer failed to demonstrate that she was similarly situated to her male

colleagues because she improperly relied “on broad generalizations at a high level of

abstraction.” Spencer, 919 F.3d at 204. The Fourth Circuit highlighted that Spencer’s

comparators were not similarly situated to her because Spencer’s comparators held “the

common title of ‘professor’ plus some generalized responsibilities . . .” and Spencer failed

to “demonstrate that the different jobs were equal in skill and responsibility.” Id.

(explaining that Spencer was a sociology professor, while the comparators she advanced

were engineering professors).

Swaso is dissimilar because Best provided factual enhancements demonstrating how

she is similarly situated to Okechukwu. See Swaso, 698 F. App’x at 749. While it is true

that Best and Okechukwu worked in different locations (Perkins and Spring Grove,

respectively), the location of an employee’s work and pay are not the only factual

enhancements courts can examine when determining if someone is a strong comparator.

See State Comm’n on Hum. Rels. v. Kaydon Ring & Seal, Inc., 149 Md. App. 666, 703

370, 382 (4th Cir. 2022) (quotation marks in original). Accordingly, it does not matter that
Best and Okechukwu did not have the same supervisor, as they were similarly situated in
other relevant respects. See id. (holding that two people advanced by the plaintiff could be
comparators, and still be similarly situated, despite the fact that they had different
supervisors than the plaintiff).
36
(2003) (holding that two employees, one White and one Black, were similarly situated

when they were both probationary employees who were performing poorly). Best and

Okechukwu both held the ADON title. Best and Okechukwu had similar schooling in that

they both held master’s degrees in the nursing profession. MDH employees testified that

both Best and Okechukwu were qualified to work at Perkins which they set out as a

permissible reason for the employee exchange. Moreover, an inference exists that MDH

found Okechukwu, the person who exchanged locations with Best, as similarly situated to

Best even prior to this lawsuit, as per the willingness to exchange them. Finally, both Best

and Okechukwu were having issues getting along with coworkers at their locations. Best

was a part of a series of meetings during 2018 and 2019 put forth to help improve the

communication and problematic dynamics between the nursing staff at Perkins, and

Okechukwu had issues getting along with employees at Spring Grove.

Spencer is likewise distinct from the case before us because Best and Okechukwu

held the same title of ADON, unlike the more general title of “professor.” See Spencer, 919

F.3d at 204 (noting that there are many different types of professors and that an engineering

professorship requires different skills, training, and efforts than a professorship in another

field, such as sociology). Because of these similarities, there is legally sufficient evidence

by which a reasonable juror could conclude that Best is similarly situated to Okechukwu.

Both Bailey and Okechukwu were Treated More Favorably than Best

The record demonstrates that there was legally sufficient evidence by which a

reasonable juror could find that Bailey and Okechukwu, both Black women, were treated

more favorably than Best, a White woman. Bailey lived closer to Spring Grove than Best,

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and even offered that she was willing to be reassigned by telling her supervisor that she

wanted to be transferred to Spring Grove. Bailey was willing to be transferred to Spring

Grove because she had worked there previously for nine years and was familiar with the

culture. In response, her supervisor told her, “they won’t let you.” Bailey understood “they”

to mean Robison and Fogan. It was reasonable to conclude that Bailey was treated more

favorably by being allowed to remain in her position.

Likewise, there was evidence to support that Okechukwu was also treated more

favorably than Best. The record demonstrates that MDH had a number of concerns

regarding Okechukwu’s performance, including among them: an “attendance problem[;]”

a struggle to motivate the other nurses and employees that reported to her to achieve the

kind of results that Spring Grove needed; and Shaw’s dissatisfaction with Okechukwu due

to a significant number of patient abuse allegations against her. Despite these behavioral

concerns, Okechukwu was treated more favorably than Best, by receiving a pay raise and

an assignment to work at Perkins, a more prestigious and safer State facility. Thus, because

Best presented legally sufficient evidence to illustrate that Bailey and Okechukwu were

similarly situated to her but were treated more favorably, she demonstrated different

treatment from similarly situated employees outside the protected class.

iv. Best provided legally sufficient evidence, such that a reasonable juror
could conclude that MDH’s reasons for transferring Best were mere
pretext for discrimination, satisfying the McDonnell Douglas burden-
shifting framework.

“[I]n cases where the evidence of discrimination is circumstantial rather than direct,

Maryland courts apply the three-step burden-shifting analysis first articulated

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in McDonnell Douglas . . . .” Belfiore v. Merchant Link, LLC, 236 Md. App. 32, 45 (2018)

(referencing Dobkin, 210 Md. App. at 592–93). Under the McDonnell Douglas framework,

once a plaintiff meets the initial burden of proving a prima facie case by a preponderance

of the evidence, “[t]he burden of production then shifts to the employer to . . . provide

‘some legitimate, nondiscriminatory reason’ for the adverse employment action.” Sharif v.

United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016) (quoting McDonnell Douglas, 410

U.S. at 802); see also Dobkin, 210 Md. App. at 593. If the employer meets this burden,

then “the plaintiff resumes the burden of persuading the factfinder that the employer’s

proffered explanation is merely a pretext for discrimination.” Sharif, 841 F.3d at 203.

The Burden Shifted to MDH

Here, the evidence supports that Best met her initial burden of proving her prima

facie case by a preponderance of the evidence, as demonstrated supra. The burden then

shifted to MDH to provide some legitimate, nondiscriminatory reason for Best’s transfer.

Sharif, 841 F.3d at 203. MDH provided evidence to meet this burden by asserting that it

involuntarily transferred Best for another reason: that there was a clinical need at Spring

Grove for a stronger nurse. In support of this reason, Robison testified: “Ms. Best is a very

strong clinical nurse and I immediately thought of her as a good fit. She has . . . training

and background in education . . . .” Later, Robison also testified, “[w]e weren’t making

reassignments based on any other concerns or assessments about their performance.”

Further, MDH offered evidence that approximately two dozen employees were reassigned

during Robison’s tenure.

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Shaw’s testimony also supports MDH’s position that it had a legitimate,

nondiscriminatory reason for involuntarily transferring Best. When asked, “[w]hat role, if

any, did cultural tensions play in the decision to reassign Ms. Best[,]” Shaw replied,

“[n]one. It had nothing to do with that.” Shaw was asked directly at trial if his decision to

swap Okechukwu with Best was because of Best’s race or the 2017 OIG audit. In answering

both questions, Shaw replied, “[n]one.” Shaw was also asked if the issues between the

members of the Yoruba and Igbo tribes were the reason for the involuntary transfer. He

testified that changing the ADON at Spring Grove could not fix that problem.

Best Resumed the Burden of Demonstrating that MDH’s Reasons were Pretextual

Because MDH offered evidence to meet its burden, Best then resumed the burden

of persuading the jury that MDH’s proffered explanation was merely a pretext for

discrimination. See Sharif, 841 F.3d at 203. “A discrimination plaintiff may show that the

employer’s stated legitimate and non-discriminatory reasons for termination are pretext for

discrimination by proving ‘both that the reason was false, and that discrimination was the

real reason for the challenged conduct.’” Nerenberg v. RICA of S. Md., 131 Md. App. 646,

674 (2000) (quoting Jiminez v. Mary Washington Coll., 57 F.3d 369, 377 (4th Cir.

1995), cert. denied, 516 U.S. 944, (1995)); see also Edgewood, 212 Md. App. at

200. “Pretext might be established by showing such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them unworthy of

credence and hence infer that the employer did not act for the asserted non-discriminatory

reasons.” Nerenberg, 131 Md. App. at 675 (internal citations omitted) (emphasis added).

40
Best presented legally sufficient evidence, such that a reasonable juror could

conclude that MDH’s proffered reasons for the involuntary transfer of Best were pretextual

as MDH’s reasons contained weaknesses. For example, none of the MDH employees

explained why Okechukwu was exchanged with Best instead of Abimbola. In addition,

despite the language of the letter Best received, no MDH employee provided a length of

her “temporary reassignment.” Robison testified that he “had no understanding of how long

the reassignment was going to last.” Robison also testified that he did not produce or send

any documents that stipulated the parameters of the temporary reassignment. Shaw testified

that he did not know how long the transfer would last, and that it would depend on whether

Best “would meet the objectives of getting things settled down.” Rich testified that she had

no understanding, despite being in HR, as to what clinical or “operational needs” needed

to be met for Best to be able to return to Perkins.

Moreover, despite her repeated questions regarding what objectives she needed to

achieve to be transferred back to Perkins, Best was not informed what those objectives

were. Shaw testified that he told the Chief Nursing Officer some of those criteria, such as

stability and fewer patient and family complaints; however, he never told Best of these

criteria. When asked how he tracked this information, Shaw was unable to provide an

answer or process, outside of reviewing “how much [his] phone [was] ringing, [and] how

many complaints [he was] getting,” without a reporting obligation or other method of

tracking this data. Further problematic for MDH’s evidence, no MDH employee provided

an explanation as to the reason Best was not transferred back to Perkins or why she had to

41
reapply for her job to be able to go back to Perkins, although Best’s involuntary transfer

was purportedly “temporary.”

In addition, there was also legally sufficient evidence such that a rational juror could

find, based on the preponderance of the evidence, that inconsistencies, incoherencies, and

contradictions fail to support MDH’s stated nondiscriminatory reason for transferring Best.

See Nerenberg, 131 Md. App. at 670. During trial, Best’s attorney asked Robison why he

did not terminate the nurses at Spring Grove and hire new nurses to meet the need. Robison

answered that it “was not something [they] considered doing,” because the clinical need at

Spring Grove did not “warrant[] that level of discipline.” Despite this testimony, the

evidence showed that Robison had previously attempted to terminate Best and Bailey. A

jury could conclude that this statement is inconsistent with rationale for terminating Best.

Another inconsistency in Robison’s testimony was that he “had no understanding

of whether or not [Best] was performing well at her position at Perkins, but [he] thought

she was going to fix the problem at Spring Grove[,]” which contradicts his inability to

identify the problem. Robison further testified that Best could not be transferred back to

Perkins because of the “[c]linical issues that remained at Spring Grove[,]” but was then

unable to identify the clinical issues. One could conclude that Robison’s testimony

illustrates that his “reasons” for transferring Best, the “clinical needs,” were pretextual. See

Edgewood, 212 Md. App. at 207 (holding that evidence was sufficient for jurors to

conclude that an employer’s justification for why its employee was managing different

accounts than her usual ones was inconsistent with the employer’s stated justification, and

42
thus the evidence was sufficient to permit reasonable jurors to find that the explanations

were pretextual).

Further inconsistencies can be found in Shaw’s testimony. Shaw testified that

neither he, Fogan, nor Robison discussed Best’s clinical skills, yet Best was the only

ADON that could address the clinical need at Spring Grove. Moreover, even with

Robison’s lack of knowledge regarding the clinical reasons that required Best to be

transferred to Spring Grove, Shaw testified that there were cultural issues at Spring Grove

as the majority of the nursing staff had ties to the Yoruba tribe, including Shaw, while

Okechukwu was from the Igbo tribe. Notwithstanding Shaw’s testimony that his reason for

selecting Okechukwu had nothing to do with the cultural conflicts at Spring Grove, Shaw’s

testimony suggests otherwise:

[Best’s Attorney]: But you knew and the whole reason you were even having
this conversation about transferring was because you had issues at Spring
Grove, there was a clinical need at Spring Grove that wasn’t being met.

[] Shaw: What I wanted was a different kind of clinical leadership, okay?
Because [Okechukwu] was struggling so much and having so, so many
conflicts. So, I wanted someone to come through who has a fresh set of eyes,
who’s not tied to any people there and could evaluate it and then make some
changes.

[Best’s Attorney]: You said not associated with any people there?

[] Shaw: Yeah, someone who’s not tied into any people too close, you know,
sometimes people get too friendly.

Bailey’s testimony is further illustrative. When asked “[d]id you have an understanding as

to what [] Shaw did to resolve the tribal issues at Spring Grove?” Bailey replied that Shaw

exchanged Okechukwu and Best. Further, Shaw’s testimony could be deemed inconsistent

43
in that he could not provide reasons as to why he did not transfer Best to Perkins—which

he could have done as he subsequently filled Robison’s position and had appointing

authority—even though he reassigned a different employee who asked to be transferred,

just as Best had. Based on such evidence, a reasonable juror could find, based on the

preponderance of the evidence, that MDH’s proffered reasons were mere pretext for

discrimination. Hence, we perceive no error in the trial court’s decision to deny MDH’s

motions for JNOV.

CONCLUSION

In conclusion, there is no legally sufficient evidence such that a reasonable juror,

based on the preponderance of the evidence, could find Best’s complaint to Preston or to

the OIG was based on race. Accordingly, the denial of JNOV as to Best’s retaliation claim

under 42 U.C.S.A. § 2000e-3(a) and SG § 20-606(f) is reversed and remanded. On remand,

the trial court shall grant JNOV in favor of MDH as to the retaliation claim. However, there

is legally sufficient evidence such that a reasonable juror, based on the preponderance of

the evidence, could find that Best was racially discriminated against when she was

involuntarily transferred under 42 U.S.C.A. § 2000e-2 and SG § 20-606(a)(1)(i). There is

sufficient evidence that MDH’s involuntary transfer of Best was an adverse action, that

Bailey and Okechukwu were similarly situated to Best yet treated more favorably, and that

Best met her burden under the McDonnell Douglas burden-shifting framework. Thus, we

cannot say the circuit court’s denial of JNOV as to Best’s discrimination claim was based

on legally insufficient evidence, and hence, that decision is affirmed. However, because

the jury verdict sheet did not differentiate the damages per each claim, we remand for a

44
new trial as to damages against MDH. The new trial shall be limited to determination of

the damages afforded to Best pursuant to her race-based discrimination claim.

JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY REVERSED
AND REMANDED IN PART AND
AFFIRMED IN PART. COSTS TO BE PAID
BY APPELLANT.

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