We are asked to review a jury verdict in favor of the Petitioner, Julia M. Taylor, an African American female, in a suit in which she alleged both sexual discrimination and retaliatory termination against Giant of Maryland LLC, Respondent. 1 The focal point of our review of the discrimination verdict is the application of “comparator evidence” 2 in the context of Ms. Taylor’s claim of disparate treatment related to Giant’s requirement that she undergo an independent medical examination because of a gynecological condition. We also must determine whether Ms. Taylor adduced legally sufficient evidence to support the jury’s retaliatory discharge verdict, which was premised upon Ms. Taylor’s termination some twenty-five days after having filed a discrimination claim with the Prince George’s County Human Relations Commission. We seminally must also address whether it was appropriate for Ms. Taylor’s suit to proceed in state court or whether her claims had to be federally litigated.
Ms. Taylor, a former tractor-trailer driver for Giant of Maryland, LLC, Respondent, filed a complaint in the Circuit Court for Prince George’s County alleging not only breach of contract, but that Giant discriminated against her based on her race and gender under Section 42 of Article 49B, Maryland Code (1957, 2003
Ms. Taylor also alleged that, within three weeks after she had filed her discrimination claim with the Prince George’s County Human Relations Office, Giant retaliatorily terminated her employment. She requested an award of $750,000 in compensatory damages and $750,000 in punitive damages as to each count, as well as a declaratory judgment that “the acts and practices” of Giant “violate the policies and laws of Prince George’s County and the state of Maryland,” to reinstate her employment with Giant with back pay, and to award her reasonable attorneys’ fees. After a seven-day jury trial, Ms. Taylor was the victor on the issues of sex discrimination and retaliatory termination, while Giant successfully defended on the issue of racial discrimination, culminating in an award of $644,751.00 in damages to Ms. Taylor. 6 Subsequently, Ms. Taylor was awarded attorneys’ fees in the amount $511,255.00 and costs in the amount of $33,670.00.
After Giant took appeals from the verdicts and the award of attorneys’ fees, the Court of Special Appeals reversed the judgments of the trial court,
Giant v. Taylor,
We granted certiorari,
Taylor v. Giant,
I. Does the Court of Special Appeals’ opinion announce an application of preemption law which is contrary to existing law?
II; Has the Court of Special Appeals created a new, impossible standard for comparator evidence and “adverse employment action?”
III. Did Taylor present legally sufficient evidence that she was subjected to retaliatory treatment by Giant?
We also granted certiorari to consider a related question,
Taylor v. Giant,
Where the Respondent filed a notice of appeal 34 days after entry of a collateral order for attorney’s fees following judgment on the merits, did the Court of Special Appeals have jurisdiction to consider the second appeal?
We shall hold that Ms. Taylor’s sex discrimination and retaliation claims were not preempted by Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185(a). We shall further hold that the trial court applied the correct standard for comparator evidence as it relates to аdverse employment actions. We shall also hold that Ms. Taylor adduced legally sufficient evidence to support the retaliation verdict, because a rational fact finder could have found that the decision-makers at Giant knew of her February 3, 2003 discrimination claim prior to the date of her termination, February 28, 2003. We address Ms. Taylor’s fourth question regarding the Court of Special Appeals’s jurisdiction to review the award of attorney’s fees and determine that the failure of Giant to appeal within 30 days was fatal to its claim about attorney’s fees but remand for the intermediate appellate court to consider other issues that were left unaddressed in Giant’s initial appeal.
Background
Ms. Taylor, an African American female, worked full-time as a tractor-trailer driver for Giant, making local deliveries of merchandise and groceries, from 1988 to 2003; she was a member of the Drivers, Chauffeurs and Helpers Local Union No. 639 Teamster’s Union at all times. At some point in 1995, Ms. Taylor was diagnosed with menorrhagia, or heavy, prolonged menstrual bleeding and fibroid tumors, by her gynecologist. Ms. Taylor testified that she told her direct supervisor at the time, Pamela Sanford, of the diagnosis, and Ms. Taylor occasionally requested time off from work to facilitate her treatment. Ms. Taylor testified that, because of her condition, she would “start[] experiencing heavy bleeding sometimes prior to going to work, and it would interrupt the flow of preparing to get to work, getting dressed, getting showered,” which in turn delayed her arrival at work.
At trial, it was established that Giant required its drivers to call in at least 1.5 hours ahead of a scheduled shift, if they were going to be tardy or absent. If a driver failed to abide by the call-in requirement twice within a one-month period, he/she could be subject to discipline. Ms. Taylor testified that “on some days, if the bleeding was too heavy,” she would not have the ability to provide the required 1.5 hours advance
notice of her absence or lateness. Ms. Taylor began requesting Family and Medical Leave Act (“FMLA”) leave time in order to compensate for her
Because of the call-in policy and Ms. Taylor’s inability to call in within the 1.5 hour time frame, however, Giant issued Ms. Taylor various disciplinary notices: A March 5, 2002 notice reflected that Ms. Taylor was late to her scheduled shift “twice within a 30 day period” and that her “[n]ext offense may result in more severe disciplinary action, up -to and including [germination”; a March 11, 2002 notice provided that “driver called 41 minutes prior to shift start at 07:15 am” and “[flailed to give required 1 1/2 hour notification.” A May 11, 2002 notice directed to Ms. Taylor similarly provided that Ms. Taylor “phoned in 1 hr. 2 min. prior to shift start time at 04:30 am” and “[n]ext offense may result in more severe disciplinary action up tо and including termination.” Yet another notice, dated October 18, 2002, reflected that Ms. Taylor “called off sick” and “failed to provide medical documentation.”
In response to the disciplinary notices, Ms. Taylor provided excuse slips penned by Dr. Jill Ladd, explaining that her violations of the call-in rule were due to a “gynecological problem.” Ms. Taylor also filed various grievances with Local 639, requesting that she have an opportunity to “present an explanation for [her] actions.” At the disciplinary hearing related to the notices, Ms. Taylor explained that she was unable to comply with Giant’s call-in rule because of her gynecological condition. At the November meeting, which was attended by several Giant officials, including Theodore Garrett, the Manager of Fair Employment at Giant, Ms. Sanford, Ms. Taylor’s supervisor, and Eric Weiss, Vice President of Labor Relations at Giant, Ms. Taylor was asked several questions about the effect her condition would have on her ability to abide by Giant’s call-in rule; various of those questions were included in a letter dated November 14, 2002, addressed to her and John Steger, a Local 639 official, as follows:
(1) Was Ms. Taylor physically incapable on March 4, 2002 and May 8, 2002 of providing Giant with 1.5 hours notice of her absences?
(2) If so, why?
(3) Will there be occasions in the future where Ms. Taylor’s medical condition renders her physically incapable of providing Giant with 1.5 hours notice of her absence?
(4) If so:
(a) Why?
(b) How frequently will Ms. Taylor be rendered physically incapable of providing the requisite amount of advance notice?
(c) What is the expected duration of Ms. Taylor’s physical inability to provide the requisite amount of advance notice?
(d) Given the answer to 4(a), how much advance notice will Ms. Taylor be capable of providing during the period referenced in response to question number 4(c)?
Ms. Taylor’s response was generated by Dr. Ladd in a letter dated December 11, 2002:
As previously indicated on her FMLA forms, she has a problem with menorrhagia and uterine fibroids. On occasion she will suddenly start bleeding excessively. This can occur suddenly, with no warning and when she hemorrhages she is required to get off her feet and rest to decrease the bleeding. This has required her to miss work, including 3/4/02 and 5/8/02. Unfortunately, these symptoms can occur quite suddenly, making it impossible for her to predict when she will need to stay home from work, and the sudden onset can prevent her fromgiving the required 1.5 hrs. notice to her job, as was the case on 3/4/02 and 5/8/02. There may be occasions in the future requiring Ms. Taylor to miss work without knowing 1.5 hrs. beforehand. Some months the bleeding is manageable with routine activities, and some months it is not. She is currently trying different medical options to control this problem and if these fail, she will need to undergo surgery. To undergo major surgery is not a decision to be made lightly and is not unusual for my patients to try other therapies for 6-12 months before finally scheduling a date.
Mr. Weiss did not review the doctor’s response until some time in early January, because of vacation but, in the meantime, had advised Ms. Taylor by letter dated December 24, 2002 that he still had not received the- documentation 'he requested, and thus, “Giant ha[d] no choice but to seek a second medical opinion concerning Ms. Taylor’s ability to comply with the 1.5 hour call-in requirement.” Mr. Weiss directed Mr. Steger, the Local 639 official, to have Ms. Taylor set up an independent medical examination with the Kingstree Group, the relevant medical examiner, by December 31, 2002. Mr. Weiss also stated that Ms. Taylor was required to take the examination by January 7, 2003, and that if she failed to do so, Giant would have “no choice but to deny her grievances” and perhaps to deny future requests for FMLA leave.
After Mr. Weiss finally had an opportunity to review Dr. Ladd’s letter in January of 2003, however, he asked Josie Smith, Giant’s Human Resources Manager for Distribution, to explore whether Ms. Taylor’s gynecological condition presented a safety issue. Ms. Taylor did not attend the scheduled January 7, 2003 independent medical examination; another examination at the Kingstree Group was scheduled for January 23, 2003, but Ms. Taylor did not appear for that examination and requested to have the examination rescheduled for April 7, 2003.
Ms. Tаylor filed a discrimination claim on February 3, 2003 with the Prince George’s County Human Relations Commission, which provided, in pertinent part:
On November 8, 2002, Management decided that the medical documentation used to initially approve my FMLA was now not adequate. I was forced to provide additional medical documentation and they are now saying I have to undergo further testing with their doctors. Other employees (Male, White) are not similarly treated.
The Prince George’s County Human Relations Commission mailed a notice of Ms. Taylor’s discrimination claim to Mr. Garrett, the Manager of Fair Employment at Giant, with whom Ms. Taylor had met before, who testified that he received the claim on February 7, 2003.
Ms. Taylor continued working for approximately three and a half weeks, until February 28, 2003. That day, after Ms. Taylor’s shift, Ms. Smith called a meeting, which also was attended by Michael David, a shop steward, and Nick Galyean, the Fleet Safety Director at Giant. Ms. Taylor testified that she was told that the topic of the meeting was her safety and her “ability to drive the tractor-trailer” because of her gynecological conditions. During that meeting, all male personnel left the room while Ms. Smith and Ms. Taylor spoke alone about Ms. Taylor’s ailments. At trial, the parties’ versions of what was said in this private meeting differ. Ms. Taylor testified that Ms. Smith told her she would have to submit to an independent medical examination and follow any and all rеcommendations made by Giant’s selected specialist, up to and including hysterectomy, which Ms. Smith denied.
No independent medical examination occurred. Rather, shortly after her meeting with Ms. Smith, Ms. Taylor applied for unemployment benefits and began looking for a new job. On March 6, 2003, she filed a claim of retaliation against Giant, in which she alleged she had been terminated as a result of her filing a discrimination claim on February 3, 2003: 8
I believe that the Respondent has retaliated against me for filing a Title VII based complained by terminating my employment because:
On February 3, 2003,1 filed a discrimination complaint. On February 28, 2003, I was terminated from my employment.
I was told by the Human Resources Representative that I was terminated until I took a Physical. I explained to the Respondent that I just had a Physical in December 2002 (DOT). The Representative stated that I was a safety risk and that is why I was being taken off the road.
I believe that the Respondent has taken this action to further discriminate against me in retaliation for filing the previous Title VII сomplaint.
Ms. Taylor also filed a grievance with Local 639 the same day, in which she set forth substantially the same allegations. 9
After a substantial procedural history and two removals to federal court and remands back to the Circuit Court for Prince George’s County, the case proceeded before a jury for seven days on the issues of gender and race discrimination related to the required independent medical examination and the retaliatory discharge. At the close of a seven-day jury trial, both parties made the appropriate motions, which were denied. After deliberating, the jury recorded its verdicts as follows:
1. Do you find by a preponderance of evidence that Giant of Maryland, LLC, discriminated against Plaintiff Julia M. Taylor on the basis of race prior to filing her February 3, 2003 charge of discrimination against Giant of Maryland, LLC, by requiring Plaintiff to submit to an independent medical exam (IME)?
YES_ NO S
2. Do you find by a preponderance of evidence that Giant of Maryland, LLC discriminated against Plaintiff Julia M. Taylor on the basis of gender prior to filing her February 3, 2003 charge of discrimination against Giant of Maryland, LLC by requiring Plaintiff to submit to an independent medical exam (IME)?
YES S NO_
3. Do you find by a preponderance of evidence that Giant of Maryland, LLC retaliated against Plaintiff Julia M. Taylor for filing a charge of discrimination on February 3, 2003, against Giant of Maryland, LLC by the actions taken by Giant of Maryland, LLC on February 28, 2003?
YES / NO_
Ms. Taylor filed a post-trial motion requesting attorneys’ fees and costs, which Giant opposed. In a memorandum opinion and order, the trial court awarded attorneys’ fees in the amount $511,255.00 and costs in the amount of $33,670.00.
The Court of Special Appeals reversed, in a reported opinion,
10
Giant v. Taylor,
Discussion
Initially, we must determine whether Ms. Taylor’s discrimination and retaliatory discharge claims must be decided in a federal forum rather than in a state court because of Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185(a), involving violations of collective bargaining agreements, as Giant asserts. Section 301 provides, in pertinent part:
(a) Venue, amount, and citizenship. Suits for violatiоn of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a) (2006). Section 301 of the Labor Management Relations Act, in providing federal courts jurisdiction to consider claims involving collective bargaining agreements, does not obviate state courts’ jurisdiction to entertain such cases.
United Steelworkers of America v. Rawson,
Rather, Section 301 does not permit the application of state law in the context of collective bargaining agreements. In effect, state-law causes of actions relating to violations of collective bargaining agreements are “displaced” by federal
law.
United Steelworkers of America,
The Court of Special Appeals, however, reached the opposite conclusion regarding federal preemption, reasoning that Ms. Taylor’s theory of the case was “fluid and often elusive,” appearing at times to call into question Giant’s authority to require an independent medical examination in addition to a D.O.T. physical, under the collective bargaining agreement.
Giant,
Before us, of course, Ms. Taylor disputes that her discrimination claim presents an interpretation of Article 22.7 of the collective bargaining agreement, but merely an inquiry into the application of that provision. In so doing, Ms. Taylоr relies upon
Lingle,
In
Lingle,
the issue involved whether a manufacturer terminated the employment of an individual for seeking worker’s compensation. The Supreme Court determined that Section 301 of the Labor-Management Relations Act did not preempt
state law remedies, unless the resolution of the claim “depend[ed] upon the meaning of a collective-bargaining agreement.”
Id.
at 405-06,
In
Lueck,
Roderick Lueck suffered a non-occupational back injury, submitted a disability claim with his health insurer, Aetna, and began receiving benefits that were subject to interception by his employer, Allis-Chalmers, which precipitated Mr. Lueck’s suit in state court in which he alleged that Allis-Chalmers had “‘intentionally, contemptuously, and repeatedly failed’ to make disability payments under the negotiated disability plan, without a reasonable basis for withholding the payments,” and thus, had “breached their duty ‘to act in good faith and deal fairly with [Lueck’s] disability claims.’ ”
Lueck,
In a case markedly similar to the case at bar, the United States Court of Appeals for the Fourth Circuit dealt with the same dichotomy. In
Martin Marietta Corp. v. Maryland Commission on Human Relations,
We also have had occasion to address the
Lingle-Lueck
distinction in
Batson,
In the instant case, Giant alleges that it had the authority to request an independent medical examination under the terms of Article 22.7 of the collective bargaining agreement, which provides, in pertinent part:
The Company shall not prohibit an employeе with a current valid D.O.T. card from working unless the Company has reasonable cause to believe the employee has a physical or mental condition which necessitates that he be reexamined.
Whether Giant had the authority to order an independent examination of Ms. Taylor, or the requisite “reasonable cause” to require an independent medical examination, how
ever, are not in issue.
11
Rather, the
With respect to Ms. Taylor’s retaliation claim, we also disagree with Giant’s assertion that Article 10 of the collective bargaining agrеement, which permits an employee to be discharged for “good cause,” required preemption. Here, as with Ms. Taylor’s discrimination claim, the merits turned on Giant’s motivations for firing Ms. Taylor, not whether Giant breached Article 10 of the collective bargaining agreement by firing her, as illustrated by Ms. Taylor’s Second Amended Complaint:
113. Approximately, twenty-two (22) days after Plaintiff filed her first Charge of Discrimination with the PGHRC against Defendant, Giant on February 28, 2003 relieved Plaintiff of her duties as tractor-trailer driver unless she submitted to an IME under the guise that it was “concerned” about Plaintiffs safety.
115. Defendant’s actions associated with terminating Plaintiffs employment and the grievance proceedings were used to retaliate against plaintiff.
Under these circumstances, Ms. Taylor’s retaliation claim was “independent of the collective-bargaining agreement,” and thus, not preempted.
Lingle,
Our colleagues on the Court of Special Appeals, however, determined that the issue Ms. Taylor presented was whether Giant had the authority to order an independent medical
examination, based on evidence аdduced at trial. The issue of preemption, however, is not dependent upon evidence adduced at trial, but upon what is alleged as the focus in the discrimination claim.
See Vera v. Saks & Co.,
In addressing Ms. Taylor’s sex discrimination claim, we must clarify the appropriate legal standard for comparator evidence as it relates to adverse employment actions, an issue of first impression in this Court.
See Rosemann v. Salsbury, Clements, Bekman, Marder & Adkins, LLC,
Ms. Taylor’s claim of disparate treatment emanated from Section 2-222 of the Prince George’s County Code, which stated:
No employer in the County shall discharge or refuse to hire any person, or act against any person with respect to compensation or other terms and conditions of employment, or limit, segregate, classify, or assign employees because of discrimination.
Prince George’s County Code (2003), Section 2-222. The umbrella provision, of course, for her claim was Section 42 of Article 49B of the Maryland Code, which provided, in pertinent part:
(a) Authorized.• — In Montgomery County, Prince George’s County, and Howard County, in accordance with this subtitle, a person who is subjеcted to an act of discrimination prohibited by the county code may bring and maintain a civil action against the person who committed the alleged discriminatory act for damages, injunctive relief, or other civil relief.
Maryland Code (1957, 2003 Repl.Vol.), Section 42 of Article 49B.
In proving her claim of disparate treatment, Ms. Taylor utilized evidence regarding four male truck drivers at Giant with significant health problems, none of whom was required to undergo an independent medical examination. Our colleagues on the Court of Special Appeals, however, determined that Ms. Taylor’s evidence was “not such as to allow any reasonable fact-finder to conclude that Taylor was treated differently — that is, required to undergo an IME by a Giant-specified doctor for a condition not covered by a DOT physical — than similarly situated male employees at all, let alone on the basis of gender.”
Giant,
In addressing the issue of appropriate comparator evidence, 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.
Haas v. Lockheed Martin Corp.,
In
Merritt,
Further, relevant to the singularity of gender-specific ailments, the Third Circuit Court of Appeals has considered how a company treated employees of the opposite sex with dissimilar health conditions to determine that a woman was treated adversely when she had an abortion. In
Doe v. C.A.R.S. Protection Plus, Inc.,
In her Title VII case, Ms. Doe claimed that male employees with health-related absences were not fired for failing to abide by the call-in policy. The district court granted the employer’s motion for summary judgment, reasoning that Ms. Doe had failed to establish a
prima facie
case of gender discrimination. The Third Circuit reversed, observing that two male employees had not been subjected to adverse employment action for failing to call in
Giant asserts, however, that Ms. Taylor’s comparator evidence is insufficient nonetheless, because she did not have the same supervisor as her male counterparts, that none of the male comparators sought exemption from Giant’s call-in policy due to their ailment, and that the male comparators had submitted a certification from their private doctors that it was safe for them to return to work. Ms. Taylor asserts that none of these distinguishing facts, in themselves, renders her discrimination claim insufficient as a matter of law, because all the comparators had serious health conditions that did not trigger an independent medical examination.
It is clear that one who alleges discrimination need not identify and reconcile every distinguishing characteristic of the comparators. In
Sprint/United Management Co. v. Mendelsohn,
In
Chaney v. Plainfield Healthcare Center,
In
Elkhatib v. Dunkin Donuts, Inc.,
In the instant case, the record reveals that all four of Ms. Taylor’s male comparators were afflicted with serious health problems, including Diabetes, Parkinson’s Disease, and severe dizziness, but none was required to undergo an independent medical examination, while Ms. Taylor was, for a gynecological problem. Were we to adopt the approach Giant advocates and require Ms. Taylor to produce a comparator with a gender-specific ailment that escaped the attention of DOT physicals, yet was not subjected to an indepеndent medical examination, we would essentially be eradicating disparate treatment based on gender-specific ailments as an actionable form of discrimination altogether.
Giant, though, suggests that an unpublished opinion of the Third Circuit,
Opsatnik v. Norfolk Southern Corp.,
The trial court granted Norfolk Southern’s motion for summary judgment, and the Third Circuit affirmed. The Third Circuit instructed that the sufficiency of comparator evidence is
“determined by the context of each case,
but often includes a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them.”
Opsatnik,
In this case, we also must determine whether legally sufficient evidence was adduced to support the jury verdict that Giant terminated Ms. Taylor’s employment in retaliation for having filed a discrimination claim with the Prince George’s County Human Relations Commission. In order to make this determination, “we must view the evidence, and the inferences reasonably deducible from the evidence, in a light most favorable to [the plaintiff], looking only to whether, viewed in that manner, it was legally sufficient to create a triable issue.”
Georgia-Pacific Corp. v. Pransky,
In
Manikhi v. Mass Transit Administration,
The specific element that is in question is whether Ms. Taylor adduced sufficient evidence of a causal link between her discrimination claim and Giant’s termination of her employment. Ms. Taylor argues that the Court of Special Appeals’s decision еffectively renders it impossible for her or anyone in her position to prove retaliation through circumstantial evidence, because Giant employees’ denials of knowledge of the filing of her claim was accepted as dispositive by the Court of Special Appeals. Giant responds that Ms. Taylor failed to show that the individual decision-makers involved in her discharge on February 28, 2003, Mr. Weiss and Ms. Smith, knew that Ms. Taylor had filed a discrimination claim at the time the decision was made.
In the present case, Ms. Taylor adduced solely circumstantial evidence to prove Giant knew of the discrimination claim. The distinction between direct evidence of knowledge and circumstantial evidence is oftentimes at the heart of a retaliation case, as exemplified by the Seventh Circuit’s discussion in
Sylvester v. SOS Children’s Villages,
The plaintiffs claim that she was retaliated against ... for opposing sex discrimination in the form of sexual harassment depends entirely on circumstantial evidence; and we must first consider whether and in what sense such evidence can be used to prove retaliation (or other forms of discrimination, but we confine our discussion to retaliation). The usual way in which a plaintiff tries to establish a prima facie case (that is, a case strong enough to withstand summary judgment for the defendant) of retaliation is by an adaptation of the McDonnell Douglas test.... [Tjhis “requires the plaintiff to show that after filing the charge [or otherwise opposing the employer’s allegedly discriminatory practice] only he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though he was performing his job in a satisfactory manner.” This method of establishing a prima facie case requires proof both of similarly situated employees and of the plaintiffs performing his job satisfactorily.
This method is called “indirect”; the alternative — the “direct” — method of establishing a prima facie case of retaliation requires the plaintiff “to present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that he engaged in protected activity (filing a charge of discrimination) and as a result suffered the adverse employment action of which he complains.” This method is ordinarily more onerous because of the phrase that we have italicized, but it is the plaintiffs only recourse if he (in this case she) cannot prove that a similarly situated employee who did oppose the employer’s practice was not fired or otherwise treated as badly as the plaintiff was.
Read literally, the passage just quoted ... would defeat Sylvester’s use of the “direct” method because the passage says that the method requires “direct evidence,” defined in the passage as “evidence that establishes [a proposition] without resort to inferences from circumstantial evidence.” This is a misleading dictum. What is true is that the direct method does not utilize the specific circumstantial evidence that the plaintiff presents when he uses the indirect method of establishing discrimination. But if he can prove by means of circumstantial evidence “that he engaged in protected activity (filing a chаrge of discrimination) and as a result suffered the adverse employment action of which he complains,” that is fine, as most of our cases ... properly assume.
The distinction between direct and circumstantial evidence is vague ... but more important it is irrelevant to assessing the strength of a party’s case. From the relevant standpoint — that of probative value — “ ‘direct’ and ‘circumstantial’ evidence are the same in principle.”
The conventional distinction is that direct evidence is testimony by a witness about a matter within his personal knowledge and so does not require drawing an inference from the evidence (his testimony) to the proposition that it is offered to establish, whereas circumstantial evidence does require drawing inferences. By that standard, even a documentary admission is circumstantial evidence, because the genuineness of the document must be inferred before the admission can be credited. But actually all evidence, even eyewitness testimony, requires drawing inferences; the eyewitness is drawing an inference from his raw perceptions. “All evidence is probabilistic, and therefore uncertain; eyewitness testimony and other forms of ‘direct’ evidence have no categorical epistemological claim to precedence over circumstantial or even explicitly statistical evidence.” Perhaps on average circumstantial evidence requires a longer chain of inferences, but if each link is solid, the evidence may be compelling — may be more compelling than eyewitness testimony, which depends for its accuracy on the accuracy of the eyewitness’s recollection as well as on his honesty.
A residual suspicion of circumstantial evidence in discrimination (including retaliation) cases is perhaps reflected in the frequent references in decisions of this court to “a convincing mosaic of circumstantial evidence” as an alternative “direct” method to direct evidence of establishing the prima facie case. The phrase first appeared ... to describe the “kind of circumstantial evidence ... that consists of ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff.” A mosaic is a work of visual art composed of a large number of tiny tiles that fit smoothly with each other, a little like a crossword puzzle. A case of discrimination can likewise be made by assembling a number of pieces of evidence none meaningful in itself, consistent with the proposition of statistical theory that a number of observations each of which supports a propоsition only weakly can, when taken as a whole, provide strong support if all point in the same direction: “a number of weak proofs can add up to a strong proof.”
Id. at 902-03 (citations omitted). Thereafter, the court enumerated several pieces of circumstantial evidence that buttressed Ms. Sylvester’s claim of retaliation: the fact that two signatories were promptly fired after drafting the letter despite their having poor work records for a substantial period of time, Ms. Sylvester’s job performance being discussed, although she had “no current performance issues,” by the SOS board after she signed the letter, and the fact that Mr. West was authorized to fire Ms. Sylvester for reacting to the firing of the two co-signatories, not poor job performance. Id. at 905.
In
Imwalle v. Reliance Medical Products, Inc.,
In
Pickett v. Sheridan Health Care Center,
The recоrd reflects that, after Ms. Taylor filed her discrimination complaint with the Prince George’s County Human Relations Commission on February 3, 2003, the Commission mailed a notice to Mr. Garrett,
Finally, we address Ms. Taylor’s challenge to the Court of Special Appeals’s reversal of the trial court’s award of attorney’s fees to her, which was brought to us by a second petition for certiorari. She argues that the intermediate appellate court lacked jurisdiction to consider Giant’s untimely filed appeal, which was filed more than 30 days after the trial court issued and entered its order granting her motion for attorney’s fees, and thus was untimely filed under Rule 8-602.
13
We agree, for it is axiomatic that
“a
party in the trial court must file a timely notice of appeal, from an appealable judgment, in order to confer upon an appellate court subject matter jurisdiction over that party’s appeal.”
In re Nicole B.,
In reversing the Court of Special Appeals opinion, however, we are mindful that the intermediate appellate court did not reach a number of issues also raised by Giant in its appeal, which requires that we remand the case to the intermediate appellate court for consideration of the additional issues.
See New York Bronze Powder Co. v. Benjamin Acquisition Corp.,
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS IN THIS COURT TO BE PAID BY RESPONDENT. COSTS IN
Notes
. Ms. Taylor initially not only sued Giant, but also Local No. 639 of the Drivers, Chauffeurs and Helpers Local Union and Michaеl David, a shop steward, and included a number of other legal theories in her initial and Second Amended Complaint. Giant, however, now is the sole party before us.
. 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.”
Eaton v. Ind. Dep't of Corrections,
. Section 42 of Article 49B provided, in pertinent part:
(a) Authorized. — In Montgomery County, Prince George’s County, and Howard County, in accordance with this subtitle, a person who is subjected to an act of discrimination prohibited by the county code may bring and maintain a civil action against the person who committed the alleged discriminatory act for damages, injunctive relief, or other civil relief.
Maryland Code (1957, 2003 Repl.Vol.), Section 42 of Article 49B.
. Section 2-222 of the Prince George's County Code provided:
No employer in the County shall discharge or refuse to hire any person, or act against any person with respect to compensation or other terms and conditions of employment, or limit, segregate, classify, or assign employees because of discrimination.
Prince George’s County Code (2003), Section 2-222.
. The entry for “menorrhagia” in Stedman’s Medical Dictionary references another entry, for "hypermenorrhea.” Stedman’s Medical Dictionary 1185 (28th ed. 2006). "Hyрermenorrhea” is defined as "[e]xcessively prolonged or profuse” hemorrhaging in the “uterine mucous membrane." Id. at 923, 1185.
. The jury awarded Ms. Taylor damages as follows:
a. Compensatory Damages $644,750.00
b. Nominal Damages $1.00
c. Punitive Damages %0.00
TOTAL $6.44,751.00
. Section 301 of the Labor-Management Relations Act provides, in pertinent part:
(a) Venue, amount, and citizenship. Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a) (2006).
. The parties attempted, without success, to mediate Ms. Taylor’s complaint with the Prince George's County Human Relations Commission.
. Arbitration proceedings were initiated regarding Ms. Taylor’s union grievances, but were subsequently terminated.
. While Giant advanced numerous grounds for reversal in its brief before the Court of Special Appeals, the intermediate appellate court addressed only “Question 1” of Giant's brief, which asked:
[w]hether the circuit court erred in denying various motions filed by Giant on the ground that Taylor's claims were preempted by federal law ... fond] whether Giant's motion for judgment should have been granted on the ground that Taylor did not present legally sufficient evidence of a claim for discrimination or a claim for retaliation.
Giant v. Taylor,
These issues all are raised in Question I of the questions presented in Giant's brief. That question also asked whether the trial court erred in denying Giant’s motion for judgment on liability based on the absence in the Prince George's County Code of a cause of action for retaliation. Given our disposition of this appeal, we need not address that issue; nor need we address Questions II, III, and IV.
Giant v. Taylor,
II. Did the trial court err by denying Giant's motion for judgment on damages máde on the following grounds:
• damages only could be recovered for the time period between Taylor's removal from the work schedule and her termination; and
• lost earnings could not be recovered because Taylor failed to mitigate her damages?
III. Did the trial court make the following evidentiary errors:
• error in excluding evidence about the basis for Giant’s decisions to request that Taylor submit to a fitness-for-duty examination by a specialist and to remove her from the schedule until she complied with that request?
• error in admitting testimony of other drivers
• error in admitting Taylor's "post hoc notes" of a meeting with Giant representatives prepared after Taylor had a motive to fabricate?
IV. Did the trial court make the following errors in its instructions and in the verdict sheet:
• error in failing to provide the jury with a proper verdict sheet?
• error in refusing to give a jury instruction concerning Taylor’s obligation to mitigate damages, and the essential elements of her discrimination and retaliation claims?
Id.
at 7 n. 1,
. Giant hаs identified various cases, both reported and unreported, in which federal courts have held that state law claims were preempted by Section 301 of the Labor-Management Relations Act. The cases are inapposite, however, because, unlike the instant case, they all involved some iteration of a
breach
of a collective bargaining agreement.
See Batista v. Stewart Enterprises, Inc.,
. Giant relies on
Baqir v. Principi,
. Rule 8-602 provides, in pertinent part:
(a) Grounds. On motion or on it own initiative, the Court may dismiss an appeal lor any of the following reasons:
(3) the notice of appeal was not filed with the lower court within the time prescribed by Rule 8-202.
Rule 8-202 provides, in pertinent part:
(a) Generally. Except as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after the entry of the judgment or order from which the appeal is taken.