Legal Opinions - U.S. District Court, Maryland: September 29, 2008

Daily Record, The (Baltimore), Sep 29, 2008

The documents Jordan presented also failed to provide evidence of a promise. Moreover, Jordan's own deposition testimony confirmed that she did not understand the "return to work" date to be the date when she would be able to return to RIA. Nor would it have been reasonable for her to believe the "return to work" date referred to her continued employment at RIA considering that she had already received notice of her termination.

Furthermore, even if there had been a clear and definite promise, it would have been unreasonable for Jordan to rely on any representations. Jordan was employed on an "at will" basis. See Samuels v. Tschechtelin, 763 A.2d 209, 232 (Md. Ct. Spec. App. 2000). The Employee Acknowledgment Form and Confidentiality Statement that Jordan signed demonstrated that she was aware that only RIA's Executive Vice President or Chief Operating Officer could alter her employment status from an "at will" basis. There was no evidence that either of these individuals made any indication that they were altering Jordan's employment status.

Accordingly, Jordan was not entitled to summary judgment on the promissory estoppel count.

COMMENTARY: Because there was no direct evidence of discriminatory intent, the court evaluated Jordan's discrimination claims under the McDonnell-Douglas burden-shifting analysis for circumstantial evidence. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under that rubric, the employee must first establish a prima facie case of discrimination. Id. at 802. The employer is then required to produce evidence of a non-discriminatory justification for the adverse employment action. Id. The burden then shifts back to the employee to demonstrate that the asserted justification is pretextual. Id. at 803-05.

At that point, an employee's "prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148 (2000). However, "there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory." Id.

The 4th Circuit uses a modified prima facie analysis when examining employment decisions taken as part of a reduction-in- force (RIF). See EEOC v. Westhaven Elec. Co., 713 F.2d 1011, 1014- 15 (4th Cir. 1983). Under this modified test, when the decision to terminate an employee is part of a RIF, and not based on the employee's job performance, a prima facie case consists of showing that the employee (1) was in a protected class, (2) was discharged, (3) was performing satisfactorily at the time of discharge, and (4) "persons outside the class were retained in the same position or that there was some other evidence that the employer did not treat [the class]...neutrally in deciding to dismiss the plaintiff." Herold v. Hajoca Corp., 864 F.2d 817, 819 (4th Cir. 1988).