*This is an unreported opinion, and it may not be cited in any paper

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or

other document filed in this Court or any other Maryland Court as either precedent within

the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Circuit Court for Howard County

Case No. C-13-19-000122

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2073

September Term, 2019

______________________________________

SENATE ALEXANDER

COLUMBIA ACADEMY, LLC, ET AL.

______________________________________

Berger,

Shaw Geter,

Raker, Irma S.

(Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Shaw Geter, J.

______________________________________

Filed: February 18, 2021

‒Unreported Opinion‒

*This is an unreported

This appeal arises from a decision of the Circuit Court for Howard County granting

summary judgment against Senate Alexander, appellant, and in favor of Columbia

Academy, LLC (“Columbia Academy”), Patricia Kincaid, and Thomas Kincaid, appellees.

Appellant filed a complaint, and later an amended and a second amended complaint,

against appellees asserting claims for breach of contract; violation of § 3-501 et seq. of the

Labor and Employment Article of the Maryland Code, known as the Maryland Wage

Payment and Collection Law (“MWPCL”); violation of the Howard County Code on

Human Rights; and wrongful discharge. Appellees filed a motion for summary judgment

and appellant did not file a response or a request for a hearing. The circuit court, in a

written memorandum opinion entered on November 18, 2019, granted appellees’ motion.

This timely appeal followed. We note, preliminarily, that in appellant’s Civil

Information Report, appellant clarified that he is appealing only the circuit court’s rulings

with regard to Counts One and Three of the second amended complaint, which alleged

breach of contract and discrimination on the basis of race. As such, the sole issue presented

for our consideration is:

Whether the circuit court erred in granting summary judgment in favor of appellees?

Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The material facts of this case are not in dispute. Columbia Academy is a Maryland

corporation that owns and operates child care and early education centers in Howard

County. It is owned and managed by Patricia Kincaid and Thomas Kincaid. By letter

dated March 30, 2018, Columbia Academy offered appellant employment as the regional

‒Unreported Opinion‒

director of the school’s pre-school division. Appellant accepted the position and began

working in April 2018.

The letter offering appellant employment provided that his starting pay would be

“$81,000 annually.” The first paragraph of the letter stated: “[t]his offer and your

employment with Columbia Academy are conditional on the terms and conditions

contained in this letter, and any other written documents provided to you in connection

with your employment by Columbia Academy.” Various benefits were specified as

follows:

As a full-time employee, you are eligible to enroll in our company’s

benefits programs effective the first of the month following 60 days from

your hire date. These include health, dental, vision, life and other

supplemental insurance programs. In addition, you will be automatically

enrolled in the company 401(k) retirement plan at 4% contribution following

90 days of employment. Columbia Academy matches employee

contributions up to 4% per plan year. Employees are also eligible to receive

discounted tuition for their children attending Columbia Academy Schools.

You will receive additional information about these and other benefit plans

and eligibility requirements.

Although there was no mention of a bonus in the employment contract, and no other

written agreement, appellant maintains that Columbia Academy agreed to pay him

quarterly bonuses up to $8,100 per year. Appellant’s assertion that he was entitled to a

bonus was based on negotiations he had with Chris Schuster, Columbia Academy’s former

Chief Operating Officer, regarding his employment. On March 29, 2018, Schuster sent an

email to appellant stating, in part:

Normally[,] I would call[,] but I know you are finishing out your day and I

wanted to make sure I got this to you today.

‒Unreported Opinion‒

We would like to extend an offer to join our team as a Regional Director.

The salary would be $80,000.00 with our executive management benefits.

Also [sic] would include a bonus plan of up to 10% of salary that you and I

would develop together based on performance benchmarks of your locations.

All of this would be articulated in a formal offer letter[,] but I wanted to see

if you were interested.

Appellant and Schuster exchanged emails discussing the proposed salary. On

March 30, 2018, appellant received an email from Schuster, who wrote:

I think you’re [sic] evaluation of range is fair, but I’m trying to keep things

within certain budget levels. I can get you into your proposed range but not

exactly at your counter. I can go up to $81,000.00 with a projected start date

of 4/23. Please keep in mind that we will be developing an incentive

compensation plan that will provide up to $8,100 (10% of base pay) in

additional pay per year. It will be obtainable as you and I will develop it

together. Frankly there’s no point having incentive compensation that you

cannot actually earn. If that’s the case, it’s not really an incentive.

Notwithstanding Schuster’s comments about a bonus, the letter offering appellant

employment did not include any reference to a bonus. Appellant signed and accepted the

letter offering him employment, and worked for Columbia Academy until January 18,

2019, when his employment was terminated.

Shortly thereafter, he filed a complaint in the Circuit Court for Howard County and

ultimately a second amended complaint that gave rise to this appeal. Appellant alleged

that while he was employed by Columbia Academy he was “subjected to repeated

harassment from upper leadership (being interrogated multiple times for 1–2 hours per

session), isolation, including but not limited to: having his emails ignored, his phone calls

evaded, and his requests for meetings dashed, and exposure to repeated instances of racial

degradation.” He asserted that the adverse treatment towards him “drastically worsened”

‒Unreported Opinion‒

after Schuster’s departure from Columbia Academy and after he “asked for his agreed upon

bonus[.]” Appellant alleged that Thomas Kincaid made a “derogatory racial slur” when he

stated, “[w]e cannot have the inmates running the prison[.]” According to appellant, that

comment referred “to disgruntled lower level staff at a particular preschool, who were

nearly all minority status employees.”

Appellant claimed he “repeatedly informed corporate personnel of Columbia

Academy’s licensing violations, repeated failures to adhere to a State Issued [sic]

Compliance Agreement, and improper supervision of children.” On January 8, 2019, he

“requested a formal meeting to discuss the payment of his bonus and the grievances he had

with the organization regarding organizational practices and unfair treatment toward

himself in relation to other staff,” as well as Thomas and Patti Kincaid’s handling of an

incident involving the assault of an employee. Appellant never received a meeting, email,

or phone call in response to the grievances he raised. Appellant sent an email to the

Kincaids and the new Chief Operating Officer, Don DeVries, that contained “an extensive

investigative report about the assault that took place” at one of the preschools, and informed

DeVries that “he planned on writing an additional report of incidents at Columbia

Academy[.]” One week after sending that email, appellant’s employment was terminated.

Appellant claimed that he was wrongfully terminated “because of his race and

gender, his concerns regarding [Columbia Academy’s] licensing duties and adherence

failures, and his asking for his agreed upon bonus.” He alleged that he was terminated

under the pretense of “ineffective communication, ineffective staff relationship building,

and inadequate decision-making.”

‒Unreported Opinion‒

The second amended complaint set forth four counts. The first count, for breach of

contract, was based on the alleged failure of Columbia Academy to pay appellant the bonus

for the second, third, and fourth quarter of 2018. Appellant asserted that after he made

inquiries pertaining to the bonus, he “was systematically prevented from doing his job

fully[,]” and “unknowingly removed from emails, meetings, and general discussions about

the pre-school division[.]” He claimed Ms. Kincaid failed to respond to his emails and

telephone calls and refused to meet with him. In addition, appellant alleged his termination

was in retaliation for an investigation and report he completed about a December 31, 2018

incident involving an assault by one employee against another and conversations he had

with DeVries about his intention to write a report documenting the Academy’s licensing,

health, and safety violations. Count Two set forth a claim for retaliation in violation of the

MWPCL. Appellant asserted he was terminated after he complained to his supervisor and

the owners of Columbia Academy that he had not received a bonus.

Count Three set forth a claim for discrimination based on race and gender in

violation of the Howard County Human Rights Code. Appellant, an African American

man, alleged that he was interrogated by DeVries on two occasions, for one and two hours,

about Schuster, who, according to Thomas and Patti Kincaid, left Columbia Academy “for

alleged misconduct.” During the interrogations, it was “insinuated” that appellant “knew

about and was somehow involved in the alleged misconduct of Mr. Schuster.” Appellant

asserted that no one else at Columbia Academy was similarly interrogated and that he was

interrogated and subject to discrimination and intimidation because “he is an African

American Male who have historically been subject to criminal stereotyping, and racial

‒Unreported Opinion‒

profiling.” According to appellant, other employees who had been the subject of

disciplinary proceedings were “afforded progressive disciplinary action to alert staff of

their wrongdoings and provide guidance to assist with improvements.” He asserted that

Columbia Academy had not terminated other employees who had engaged in a variety of

wrongful behavior. Count Four set forth a claim for wrongful discharge based on

appellant’s January 16, 2019, statement to DeVries that he “was in the process of writing

a full report to the state licensing board on all of the licensing issues that transpired at

Columbia Academy since April 2018.” In a joint pretrial statement filed by the parties,

appellant indicated that he would not pursue “his claim for wrongful termination as set

forth in Count Four of his Amended Complaint[,]” and would not pursue “his claim for

wrongful termination based on gender as set forth in Count Three[.]”

On September 23, 2019, appellees filed a motion for summary judgment asserting

that “no incentive compensation plan was ever developed or finalized or put into writing[;]”

that appellant’s inquiry “about his bonus played no role in the decision to terminate his

employment[;]” that in early December 2018, DeVries asked employees who reported to

appellant to provide feedback concerning his performance; that “race played absolutely no

role in the decision to terminate [appellant’s] employment[;]” that appellant “was

terminated due to poor work performance[;]” and that appellant was not meeting

expectations at the time of his termination “as reflected by the Employee Documentation

Termination Form,” which set forth in detail the areas where he was failing to meet

expectations and was presented to him at the time of his termination. Appellees also

asserted that appellant failed to file a complaint with the Howard County Office of Human

‒Unreported Opinion‒

Rights, he filed only a pre-complaint questionnaire, and he failed to exhaust administrative

remedies. In addition, appellees argued the MWPCL does not include non-retaliation

provisions that provide for a private right of action.

Appellant did not file an opposition to the motion for summary judgment and no

hearing was held. In a written memorandum and order entered on November 18, 2019, the

circuit court found there was no genuine dispute of material fact and appellees were entitled

to judgment as a matter of law. With respect to the breach of contract claim, the court

found that appellees did not breach the employment contract because the offer letter did

not provide for payment of a bonus and no other conversation or memorandum between

the parties constituted a contractual agreement to pay a bonus to appellant.

The court agreed with appellees that the MWPCL did not provide for a private right

of action for retaliation claims, and found that appellant “should have sued under the

Maryland Wage and Hour Law (MWHL),” § 3-428(b)(1)(iii)(1) of the Labor and

Employment Article of the Maryland Code, which prohibits employers from “‘taking

adverse action against an employee because the employee makes a complaint that the

employee has not been paid in accordance with the subtitle.’” Notwithstanding, the court

determined appellant did not present evidence sufficient to support a claim of retaliation

because the evidence established that appellees “did not hastily draft their disciplinary

letter in retaliation for [appellant’s] constant reminders of a bonus—they terminated him

after observing and receiving feedback about his performance in the organization.”

The court determined it did not need to reach the merits of appellant’s claim that he

was unlawfully terminated on the basis of race, or that he was subjected to unlawful racial

‒Unreported Opinion‒

harassment under the Howard County Human Rights Law, because appellant failed to

exhaust administrative remedies as required by § 20-1202 of the State Government Article.

According to the court, even if appellant had complied with the exhaustion requirements,

he failed “to make a prima facie showing that his termination was due to his race” and

failed to produce evidence “to rebut [appellees’] stated reason for his termination.” The

court also rejected appellant’s claim of a racially hostile work environment on the ground

that he failed to produce sufficient evidence to support that claim.

STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine dispute as to any

material fact and . . . the party in whose favor judgment is entered is entitled to judgment

as a matter of law.” Md. Rule 2-501(f). When reviewing the trial court’s grant of a motion

for summary judgment, the standard of review is de novo. Beka Indus., Inc. v. Worcester

County Bd. of Educ., 419 Md. 194, 227 (2011) (citing Dashiell v. Meeks, 396 Md. 149, 163

(2006)). We independently review the record “‘to determine whether the parties properly

generated a dispute of material fact, and, if not, whether the moving party is entitled to

judgment as a matter of law.’” Bank of New York Mellon v. Georg, 456 Md. 616, 651

(2017) (quoting Chateau Foghorn LP v. Hosford, 455 Md. 462, 482 (2017)). “‘We review

the record in the light most favorable to the nonmoving party and construe any reasonable

inferences that may be drawn from the facts against the moving party.’” Kennedy Krieger

Inst., Inc. v. Partlow, 460 Md. 607, 632 (2018) (quoting Chateau Foghorn LP, 455 Md. at

482). “So long as the record reveals no genuine dispute of any material fact ‘necessary to

resolve the controversy as a matter of law, and it is shown that the movant is entitled to

‒Unreported Opinion‒

judgment, the entry of summary judgment is proper.’” Appiah v. Hall, 416 Md. 533, 547

(2010) (quoting O’Connor v. Baltimore County, 382 Md. 102, 111 (2004)).

DISCUSSION

A. Breach of Contract

It is undisputed that there was a written employment agreement between appellant

and Columbia Academy, and a plain reading of that document makes clear that there was

no provision for a bonus. Appellant, nevertheless, challenges the trial court’s

determination that neither the pre-employment nor post-employment conversations

between the parties gave rise to an agreement regarding a bonus.

“‘[A]n essential prerequisite to the creation or formation of a contract’ is ‘a

manifestation of mutual assent.’” Advance Telecom Process, LLC v. DSFederal, Inc., 224

Md. App. 164, 177 (2015) (quoting Cochran v. Norkunas, 398 Md. 1, 14 (2007)). “[T]he

validity of a contract depends upon the ‘two prerequisites of mutual assent . . . namely, an

offer and an acceptance.’” County Comm’rs for Carroll County v. Forty West Builders,

Inc., 178 Md. App. 328, 377 (2008) (quoting 3 Eric M. Holmes, Holmes’s Appleman on

Insurance 2d, § 11.1 at 93 (1998)). Manifestation of mutual assent includes both an intent

to be bound and definiteness of terms. Advance Telecom Process, LLC, 224 Md. App. at

177.

The record before us reveals there was no mutual assent to enter into an agreement

to pay appellant a bonus. The letter offering appellant employment included an annual

salary and information about other benefits, but made no mention of a bonus. The offer

letter clearly provided that the offer of employment was based “on the terms and conditions

‒Unreported Opinion‒

contained in this letter, and any other written documents provided to you in connection

with your employment with Columbia Academy.” The terms of the contract are clear and

unambiguous; and, as a result, parole or extrinsic evidence of what the parties meant or

what occurred during their negotiations was inadmissible to vary or contradict the clear

written terms. Gen. Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261 (1985) (citing

Board of Trustees of the State Colleges of Maryland v. Sherman, 280 Md. 373, 380 (1977)).

The terms of the agreement “‘will not give away to what the parties thought that the

agreement meant or intended it to mean.’” Spacesaver Sys., Inc. v. Adam, 440 Md. 1, 8

(2014) (quoting Gen. Motors Acceptance Corp., 303 Md. at 261). Accordingly, the trial

court acted properly in granting summary judgment in favor of appellees on the breach of

contract claim.

B. Discrimination on the Basis of Race

Appellant next contends the trial court erred in granting summary judgment in favor

of appellees with respect to his claim of discrimination. In Count Three of his second

amended complaint, appellant claimed he was terminated based on his race and he was

subjected to unlawful harassment based on his race in violation of the Howard County

Human Rights Law, codified in the Howard County Code, § 12-200 et seq., which, among

other things, prohibits such discrimination. See Howard County Code, § 12-208. In our

view, appellant failed to exhaust his administrative remedies and thus, the trial court

properly granted judgment in favor of appellees.

Section 20-1202 of the State Government Article of the Maryland Code provides:

‒Unreported Opinion‒

(a) Scope of section. — This section applies only in Howard County,

Montgomery County, and Prince George’s County.

(b) Civil action authorized. — In accordance with this section, a person that

is subjected to a discriminatory act prohibited by the county code may bring

and maintain a civil action against the person that committed the alleged

discriminatory act for damages, injunctive relief, or other civil relief.

section shall be commenced in the circuit court for the county in which the

alleged discriminatory act occurred within 2 years after the occurrence of the

alleged discriminatory act.

(2)(i) Subject to paragraph (1) of this subsection, an action under

subsection (b) of this section alleging discrimination in employment or

public accommodations may not be commenced sooner than 45 days after

the aggrieved person files a complaint with the county unit responsible

for handling violations of the county discrimination laws.

(ii) Subject to paragraph (1) of this subsection, an action under

subsection (b) of this section alleging discrimination in real estate may

be commenced at any time.

(d) Fees and costs. — In a civil action under this section, the court may

award the prevailing party reasonable attorney’s fees, expert witness fees,

and costs.

It is undisputed that appellant filed a pre-complaint questionnaire with the Howard

County Office of Human Rights and that he failed to file an administrative complaint. The

questionnaire filed by appellant was titled, “Howard County Office of Human Rights Pre-

Complaint Questionnaire,” and provided that “[t]here is no guarantee that the information

submitted will constitute a [basis] for filing a formal complaint.”

In addition, appellant admittedly failed to wait forty-five days after filing an

administrative complaint before filing an action in the circuit court as required by § 20-

1202 of the State Government Article. Appellant has provided no legal authority, and we

‒Unreported Opinion‒

are unaware of any, in support of his contention that the pre-complaint questionnaire should

be treated as an administrative complaint. Moreover, his argument that he should not be

penalized for failing to abide by the required forty-five day waiting period because he was

proceeding in proper person is unavailing because the rules of procedure in Maryland apply

to all parties, whether they are represented by counsel or not. Tretick v. Layman, 95 Md.

App. 62, 68 (1993). “No different standards apply when parties appear pro se.” Id. at 86.

Even assuming that appellant’s failure to exhaust administrative remedies could

somehow be excused, he would fare no better because he failed to establish a prima facie

case of either racial discrimination or severe or pervasive race-based harassment.

Maryland courts analyze claims of race and gender discrimination applying the burden-

shifting analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 801–02 (1973).

Nerenberg v. RICA of Southern Maryland, 131 Md. App.

646, 661–62 (2000). Although the McDonnell Douglas case concerned an unlawful refusal

to hire, the framework of proof adopted in that case has since been applied to other

employment discrimination claims, including those alleging discriminatory terminations.

Id. at 661. Pursuant to McDonnell Douglas, in order to establish a prima facie case of

discrimination, a plaintiff must prove: 1) that he or she was in a protected class; 2) that he

or she was discharged; 3) at the time of the discharge, he or she was performing his or her

job at a level that met the employer’s legitimate expectations; and 4) the discharge occurred

under circumstances that raise a reasonable inference of discrimination. See McDonnell

Maryland courts have a “history of consulting federal precedent in the equal

employment area.” Taylor v. Giant of Maryland, LLC, 423 Md. 628, 652 (2011).

‒Unreported Opinion‒

Douglas, 411 U.S. at 802–06; Nerenberg, 131 Md. App. at 663 (quoting Ennis v. Nat’l

Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4

Cir. 1995)).

If the plaintiff succeeds in establishing a prima facie case, the burden of production

“shifts to the defendant to articulate some legitimate, non-discriminatory explanation

which, if believed by the trier of fact, would support a finding that unlawful discrimination

was not the cause of the employment action.” Ennis, 53 F.3d at 58. “When the employer

does so, the [plaintiff] then must prove, by a preponderance of the evidence, that the

employer’s stated reason for the termination was a pretext.” State Comm’n on Human

Relations v. Kaydon Ring & Seal, Inc., 149 Md. App. 666, 676–77 (2003).

Viewing the evidence in the light most favorable to appellant, the evidence adduced

with respect to the third and fourth prongs of the McDonnell Douglas test does not support

an inference that the decision to terminate appellant’s employment was based on illegal

discriminatory criteria. Appellees produced ample evidence that appellant was terminated

from employment because of his poor work performance and failure to meet legitimate

expectations. The evidence produced by appellant, including that he was the only African

American man, and one of four men among seventeen employees in leadership positions,

and a comment by Thomas Kincaid that “we cannot have the inmates running the prison,”

was insufficient to overcome the evidence of appellant’s performance issues and

demonstrate that racial discrimination was the cause for his termination. Appellant

acknowledged in his deposition that he did not know the racial makeup of the people who

applied for leadership positions or their qualifications. He also acknowledged he never

heard Don DeVries or Pattie Kincaid, the two people along with Thomas Kincaid who

‒Unreported Opinion‒

made the decision to terminate his employment, make any derogatory or racial comments.

This testimony combined with the statement that “we cannot have the inmates running the

prison,” which appellant acknowledged was racially neutral on its face, was insufficient to

overcome Columbia Academy’s evidence that showed he was terminated from

employment because of his poor performance.

In his pre-complaint questionnaire and in his deposition, appellant identified other

staff members whom he alleged were similarly situated, but who did not receive “the same

treatment” as him, “namely harassment and termination.” Although neither party produced

the applicable pages of appellant’s deposition, our review of the record revealed that the

white female employees identified by appellant reported to him and were under his

leadership. In addition, some of the alleged actions occurred before appellant was

employed by Columbia Academy and he lacked firsthand knowledge of them. Appellant’s

allegations and deposition testimony were insufficient to rebut Columbia Academy’s

nondiscriminatory justification for the termination of his employment. There was no

evidence to establish that appellant performed his work at a level sufficient to meet

Columbia Academy’s legitimate expectations, and appellant failed to produce sufficient

evidence to establish that appellees’ reason for terminating his employment was a pretext.

The trial court also did not err in granting summary judgment in favor of appellees

with respect to appellant’s claim of a racially hostile work environment. In order to

establish a hostile work environment claim, a plaintiff must show that the challenged

conduct was (1) unwelcome; (2) based on race, gender, or protected activity; (3)

sufficiently severe or pervasive to alter the conditions of employment and create an abusive

‒Unreported Opinion‒

atmosphere; and (4) imputable on some factual basis to the employer. Magee v.

DanSources Tech. Servs., 137 Md. App. 527, 550 (2001). In order to form a basis for a

hostile work environment claim, the harassing conduct must be sufficiently extreme as “‘to

amount to a change in the terms and conditions of employment.’” E.E.O.C. v. Sunbelt

Rentals, Inc., 521 F.3d 306, 315 (4

Cir. 2008) (quoting Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998)).

Our review of the record reveals that appellant failed to present sufficient evidence

to support his hostile work environment claim. Appellant points to Thomas Kincaid’s

comment that “we cannot have the inmates running the prison,” and alleged

“interrogations” by DeVries. However, without more, that evidence is insufficient to

establish pervasive conduct that amounts to a racially hostile work environment. As we

have already noted, appellant conceded that the statement attributed to Thomas Kincaid is

not racial on its face and it does not rise to the level of creating a racially hostile work

environment. There was no other evidence of any racially derogatory comments by

Thomas Kincaid. Moreover, the alleged “interrogations” by DeVries involved work-

related matters pertaining to the termination of Schuster’s employment. Accordingly, even

if appellant’s failure to exhaust administrative remedies could somehow be excused, we

would hold that the entry of summary judgment in favor of appellees was appropriate

because appellant failed to establish a prima facie case of either racial discrimination or

severe or pervasive race-based harassment.

‒Unreported Opinion‒

JUDGMENT OF THE CIRCUIT COURT

FOR HOWARD COUNTY AFFIRMED;

COSTS TO BE PAID BY APPELLANT.