Educational Testing v. Hildebrant

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Educational Testing Service v. Elba Hildebrant No. 115, September Term, 2006. JUDGMENT - GROUNDS FOR SUMMARY JUDGMENT - DISPUTE AS TO MATERIAL FACT: An affidavit that presents a general, conclusory denial of misconduct is not sufficient to establish a genuine dispute of material fact as to whether a testing proctor acted in bad faith. Assertions of material fact must be supported, in accordance with Maryland Rule 2-501(b), by affidavit, discovery response, transcript of testimony, or other statement under oath that demonstrates the dispute of material fact. In the Circu it Court for M ontgom ery County Case No. 25 5677-V IN THE COURT OF APPEALS OF MARYLAND No. 115 September Term, 2006 EDUCATIONAL TESTING SERVICE v. ELBA HILDEBRANT Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilne r, Alan, M . (Retired, specially assigned), JJ. Opinio n by Rak er, J. Filed: May 10, 2007 This case arises out of the administration of a standardized test by Educational Testing Service ( ETS ), petitioner, to E lba Hildeb rant, respon dent. We granted ce rtiorari to consider the following two questions: 1. Whether one contracting party, which commits an issue to the exclusive discretion of a second party, may none theless go to trial against the second party for relying in goo d faith on its agent s report merely by alleging that the agent wrote that report in ba d fai th an d against the i nterests o f the seco nd party. 2. Whether a party suing for breach of the covenant of good faith and f air dealing m ay avoid sum mary judgm ent merely by alleging, without evidentiary support, that the mo ving party acted in bad faith. Educational Testing v. Hildebrant, 396 Md. 11, 91 2 A.2d 648 (2 006). I. ETS administered the standardized Praxis Series School Leaders Licensure Assessment Test on September 11, 2004 at Montgomery College in Rockville, Maryland. ETS is a non -profit c orpora tion that develo ps, adm inisters, and grades the standardized Praxis test at issue in this case. The Praxis test is a standardized licensing examination required by many scho ol districts, includ ing Mo ntgomery C ounty Public Schools, for a teacher to become a Coun ty school principal. Hildebran t, a principal-intern at a Montgo mery County elementary school, registered for the Praxis test and was among the candidates who took the test at M ontgomery College on September 11, 2004. Dana Baker, a professor at Montgomery College, administered the test and monitored the room on behalf of ETS. Before taking the test, a test take r is required to sign an ack nowled gment ag reeing to the conditions s et forth in ETS s published Information and Registration Bulletin, which provides detailed information about the Praxis test and ETS s tes ting policies. T he Bulletin contains, for example, sections entitled, Contact Inform ation, Reg istration I nform ation, On the Test Day, Scores & Score R eports, and Forms. The Bu lletin lists the various test centers and codes fo r academ ic institutions. All candidates who tak e the Praxis test are sent a Bulletin beforehand. The Bulletin addresses the consequences of breaking ETS s testing rules and procedures. In the Scores & Scores Reports section, ETS states that ETS reserves the right to cancel any test score when, in ETS s judgment, a testing irregularity occur s, there is an apparent discrepancy in a test taker s identification, the test taker engages in misconduct or plagiarism, or the score is invalid for another reason. Misconduct is broadly defined. The Bu lletin states the fo llowing reg arding mis conduct: When ETS or test center personne l find that there is misconduct in connec tion with a te st, the test taker may be dismissed from the test center, or ETS may decline to score the test, or cancel th e test score. M isconduc t includes, but is not limited to, noncompliance with the Test Center Procedures and Regu lations, pages 1 0-12 o f this B ulletin. The Test Center Procedures and Regulations provide that scores may be canceled by ETS for actions suc h as, but no t limited to, w orking on any test, or test section, when not authorized to do so, or working after time has been called. The Test Center Procedures and -2- Regulations emphasize that test takers must comply with the test administrator s directions. The Bulletin includes the following pertinent paragraph: ETS reserves the right to take all action including, but not limited to, barring you from future testing and/or canceling your scores for failure to comply with test administration regulations or the test administrator/superv isor s directions. If your scores are canceled, they will not be reported, and your fees will no t be refu nded. Hildebrant accep ted the te rms of the Bu lletin by sig ning, in her own hand, the following certification standard: CERTIFICATION STAT EME NT: (Plea se write the following statement below. DO NOT PRINT .) I hereby agree to the conditions set forth in the R egistration B ulletin and certify that I am the person whose name and address appear on this answer sheet. /s/ I hereby agree to the conditions set in the Registration Bulletin and certify that I am the person whose name and address ap pear on this answer s heet. SIGNATURE: /s/ E. Hildebrant DATE: /s/ 9/11/04 Month Day Year. After the test was administered, Baker submitted a Super visor s Irregu larity Report to ETS. The report cited Hildebrant for an irregularity during two of the testing sessions; both irregularities were categorized as misconduct. During Session I of the test, Baker s report stated that H ildebrant re fused to stop w riting w hen tim e was c alled. Warning given. Material Taken. In Session II, Baker noted that Hildebrant had to be instructed tw ice to stop w ork and close th e test bo ok. (Sh e insisted on com pleting h er thou ght.). -3- ETS informed Hildebrant by letter on September 30, 2004 that it was considering canceling her scores because it had been reported that she had continued to work on a section of the test after time was called and failed to follow directions. ETS stated that it had not yet made a final decision concerning the report of the irregularity, and would tak e no action until she responded in writing or October 28, 2004, whichever came first. ETS requested Hildebrant to provide a written state ment prov iding any add itional inform ation to help explain t he re port of th e irre gula rity. Hildebrant responded to ETS by letter dated October 9, 2004. In her letter, Hildebrant stated that she did not engage in any irregularity and criticized the test proctor s overzealous percep tion of th e test pro cedure s. Hildebrant informed ETS that she was willing to accept that the staff may thin k they were d oing wh at they were in structed to do to maintain the secure, standard conditions of the test center, but that she had con formed c ompletely to those standards, and that the report to the contrary was an error in judgment on the part of the pro ctor. ETS reviewed Hildebrant s response and concluded that Hildebrant had not followed the required testing procedures. As a result, ETS canceled Hildebrant s test scores and informed her of the decision by letter dated October 14, 2004. Hildebrant s counsel requested on October 18, 2004 that ETS reconsider its decision to cancel her scores, but ETS did not resp ond to this re quest. -4- Hildebrant filed a complaint in the Circuit Court for Montgomery County against ETS, alleging malicious defamation and breach of contract. Hildebrant amended her complaint to add Baker as a defendant on the malicious defamation count while deleting ETS as a defend ant on that sa me coun t and to add a third cause of action sounding in negligence agains t ETS . Count one of the amended complaint, against Baker only, alleged that Baker defamed Hildebrant by falsely and maliciously implying to individuals within ETS that Hildebrant had acted dishonestly in taking the Praxis test. Count two, against ETS, alleged that ETS breached its contract with Hildebrant by failing to fairly and accurately report her leadership assessment scores to the Montgomery County Board of Education. Count three, against ETS, alleged that ETS was negligent in failing to properly train and supervise Ba ker. As part of disco very, Baker and Hildebrant completed affidavits and Baker was deposed on December 21, 2004. Baker testified that sh e had adm inistered roug hly ten to fifteen tests per year for the past eight years for ETS. Baker further testified that she was an associate supervisor of a testing site and that she generally [has] no knowledge of what ETS does after the testing session is over. When asked how long Hildebrant continued to write after time was called during the second testing session, Baker stated that it was a significant amount o f time. I don t time it on my timepiece. More than 30 seconds, not five minute s. Baker s affidavit provided information about her background and testing experience with ETS. The affidavit, dated January 18, 2005, stated as follows: -5- 1. I am currently a Professor in and Department Chair of the Department of Counseling at Montgomery College, R ockville campus. I was cho sen as one of twelve faculty members at the college to receive a Faculty O utstanding Service Award for 2003-2004. 2. I received a B.A. in psychology from The College of Wooster in 1981. 3. I received a M.A . in counse ling and gu idance fro m Trinity College in Washington, DC in 1992. 4. I am currently pursuing a Ph.D. at America n Unive rsity in Washington, DC. 5. I have administered tests for Educational Testing Service ( ETS ) and other testing companies for approximately ten years. 6. On behalf of ETS, I administered the September 11, 2004 The Praxis Serie s: Professio nal Asses sments fo r Beginning Teachers, The School Leaders Licensure Assessment test ( Praxis test ) at Montgomery College. Assisting me in my duties, which included monitoring the testing room, was a room proc tor, M s. Joc elyn L owr y. 7. One of the candidates who took the September 11, 2004 Praxis test that I administered at Montgomery College was Elba Hildebran t. I had never previously met Ms. Hildebran t, nor did I know a nything abou t her before the test. 8. On September 11, 2004, I filled out a Supervisor s Irregularity Report rega rding M s. Hildebran t. I provided th is report to the tes t site sup ervisor, w ho sen t the repo rt on to E TS. In opposition, Hildebrant filed an affidavit, stating, in pertinent part, as follows: 1. I am a princ ipal intern at an elementa ry school in Montgom ery County School System in Ma ryland ( MC PS ). One of the requirements to become a principal in MCPS is to -6- take and pass th e Praxis II, Sc hool Lea ders Licensure Assessment test ( Assessment Test ), which is administered by ETS. 2. I registered by telephone with ETS to take the Assessment Test scheduled for September 11, 2004, for which I paid a fee of $465. I did not receive from ETS at any time a document entitled, Registration Bulletin or similar title.1 3. I have read the Supervisor s Report of Irregularities. . . . Each statement on the report concerning my conduct during the administration of the As sessment T est is false in every respect and has no basis in fact whatsoever. These statements are so contrary to any reasonable understanding or interpretation of anything that could have been observed that I have read ily concluded that they were made with the knowledge that they were f alse and with th e intent to harm m e perso nally. ETS and Baker filed a Motion to Dismiss or, in the alternative, for Sum mary Judgme nt. Hildebrant filed an opposition to that motion. After a hearing on the motion, Judge John W. Debelius, III, granted summary judgment as to the breach of contract count and dismissed the defamation and negligence counts. The court concluded as follows: Well, I ve consid ered the m otion to the parties as well as the argument that we ve heard on the record, and it seems to me that there s a contract. T he contrac t has been acknowledged by plaintiff. And the contract did reserve to E TS the jud gment to make those calls an d it seems to m e that it s inescapable that that s exactly what ETS did. I don t see the d efama tion her e. I think that it does fail on both harm and lack of communication to someone else because the defendant Baker was acting as an 1 At the motions hearing, Hildebrant s counsel clarified that ETS allowed Hildebran t, as an accommodation , to register for th e Praxis test b y phone bec ause she w as unable to complete an online registration. Hildebrant s counsel acknowledged that she was nonetheless subject to the term s in the Bulletin, howeve r. -7- agent and employee of ETS. And I think that with regard to the negligence, the same problem . The duty, the breach I don t see that h ere. 2 Hildebrant noted a tim ely appeal to the Court of Special Appeals as to the breach of contract claim. Before the Court of Special Appeals, Hildebrant argued that, in deciding whether to cancel the test scores, ETS must exercise its discretion in good faith, because in every contract, there exists an imp lied coven ant that each of the parties thereto will act in good faith and deal fairly with the others. Hildebrant maintained that an issue of material fact existed as to whether ETS canceled the test scores in good faith.3 ETS did not dispute Hildebrant s position that it must act in good faith, but argued that Baker s knowledge could not be impute d to ETS because th e Bulletin expressly reserves to ETS, not to test administrato rs, the judgm ent of wh ether to can cel a test score for misco nduct. 2 Hildebrant filed a motion to alter or amend judgm ent, arguing that summ ary judgment was improper o n the breach of co ntract coun t, and asserting that an issue of material fact existed regarding whether ETS had exercised its ju dgment in good faith when it determined that Hildebrant had violated test procedures. ETS responded in oppositio n to the motion. The Circuit Court denied the motion. 3 The Court of Special Appeals summarized Hildebrant s argument as follows: (1) Hildebrant said in her aff idavit that eve rything Bake r said in the Irre gularity Repo rt concerning Hildebrant s failure to stop writing after time was called wa s false; (2) if what Baker said was false, then she knew it was false when she wrote the report; (3) Baker was, at all times here pertinent, ETS s agent; (4) ETS is bound by the knowledge of its agents; (5) because Baker knew the allegations of misconduct were bogus, then so did ETS; and (6) therefore, taking the evidence in the light most favorable to the movant, when ETS exercised its discretion to c ancel the test s cores, it did so in bad faith. Hildebrant v. Educational Testing, 171 Md. A pp. 23, 31, 908 A .2d 657, 661 (200 6). -8- The Court of Special Appeals analyzed the law of principal and agent and held that it was proper to impute Bake r s kno wledg e to ET S. Hildebrant v. Educational Testing, 171 Md. App. 23, 34, 908 A.2d 657, 663 (2006). The intermediate appellate court held that summary judgment was gran ted improp erly because th ere was a dispute of m aterial fact. Id. at 37-38, 908 A.2d at 665. The court concluded: Here there exists a material dispute of fact as to whether Ms. Baker made up her allegations of misconduct against Hildebran t. If she did make up those allegations, her knowledge of the false allegation is imputable to ETS and that imputed knowledge would suffice to show bad fa ith on th e part of ETS. Id. Accordingly, the Court of Special App eals reversed the entry of summary judgment on the breach of contract claim and remanded for fur ther pro ceedin gs. Id. ETS filed a petition for wr it of certi orari, w hich w e grante d. Educational Testing, 396 Md. 11, 912 A.2d 648. II. Before this Court, petitioner argues that the Court of Special A ppeals applied agency law principles im properly by expanding the implied contractual covenant of good faith and fair dealing im permissibly into a mechan ism for ov erriding exp licit contractual terms. Petitioner asserts also that the intermediate appe llate court erred in concluding that Hildebrant established a genuine d ispute as to a m aterial fact. Hildebrant responds in several ways: (1) that ETS acts through its agents and may not disav ow its relation ship with a gents through a contract provision; (2) that the knowledge of Baker, as ETS s agent, in submitting -9- a false report is imputed to ETS; (3) that Hildebrant met the evidentiary standard for overcoming a motion for summary judgment; and (4) that there is no valid public policy reason to insulate ETS from liability for the acts of its agents. III. This Court s review of the Circuit Court s grant of a motion for summary judgment is de nov o. Harford County v. Saks Fifth Avenue Distrib ution C o., ___Md. ___, ___ A.2d ___, 2007 WL 1119877 (2007). In reviewing a grant of summary judgment, we independently determine first wheth er a genuin e dispute of material fac t exists and o nly where such dispute is absent will we proceed to determin e whethe r the movin g party is entitled to judgment as a matter of law. Hill v. Knapp, 396 Md. 700, 711, 914 A.2d 1193, 1199 (2007). The law in regard to the sufficiency of allegations in a response to a motion for summary judgment motion is well settled. In order to defea t a motion for summ ary judgmen t, the party opposing the motion must identify with particularity each material fact in genuine dispute and provide support for its contentions by an affidavit or other written statement under oa th. Md. R ule 2-501 (b). An af fidavit supporting or opposing a motion for summary judgm ent mu st set for th such facts as would be adm issible in eviden ce. Md . Rule 2-501 (c). Consequently, mere general allegations or conclusory assertions which do not show facts in detail and with precision will not suffice to overcome a motion for -10- summary judgm ent. See, e.g., O C onnor v. B altimore C ounty, 382 Md. 102, 111, 854 A.2d 1191, 1196 (2004); Beatty v. Trailmaster, 330 Md. 726 , 738, 625 A.2d 1 005, 1011 (199 3); King v. Bankerd , 303 M d. 98, 112, 4 92 A.2d 608, 615 (1985); Dietz v. Moore, 277 Md. 1, 5, 351 A.2d 428, 431 (19 76); Lynx, Inc. v . Ordnan ce Produ cts, 273 Md. 1, 7-8, 327 A.2d 502, 508-09 (1 974); Frush v. Brooks, 204 Md. 315, 320-22, 104 A.2d 624, 626 (1954). We explained the standard and the necessity for materiality of disputed facts as follows: The function of the summary judgment procedure is not to try the case or decide the issues of fact raise d; it is merely to determine whether or not there is an issue of fact to be tried and if there is none, to c ause judg men t to be ren dere d acc ordingly. At the trial level, the purpose of the hearing on the motion is to decide whether a real dispute as to material facts does exist; if the pleadings, d epositions, ad missions an d affidav its (if any) show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law, summary judgment should be granted. A bare a llegation in a g eneral wa y that there is a disp ute as to material facts is never sufficient to defeat a motion fo r summary judgmen t. General allegations which d o not show facts in detail and with precis ion are insu fficient to prevent the entry of summa ry judgment. Even where it is shown that there is a dispute as to a fact, when the resolution of that factual dispute is not material to the controversy, such dispu te does not prevent the e ntry of summary judgmen t. Such a materia l fact m ust be o ne, the resolution of which will som ehow affect the outc ome o f the ca se. Lynx, 273 Md. at 7-8 , 327 A.2d at 508 -09 (citations omitted). We review the record in the light mo st favorab le to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party. -11- Harford Coun ty, ___Md. at ___, ___ A.2d at ___, 2007 WL 1119877 at *3. Ordinarily, we will uphold the grant of summary judgment only on the grounds relied upon by the trial court. Md. Rule 8-131. With these principles in mind, we turn to the question of whether the case sub judice was prop erly resolved by gr ant of sum mary judgm ent. IV. We determine first whether Hildebrant has presented a genuine dispute of material fact sufficient to overcome a motion for summa ry judgment. T he material f act at issue in th is case is not merely whether Hildebrant engaged in misconduct. In such a classic he said, she said situation, where the test administrator reports misconduct and the test taker denies such miscond uct, the Bulletin clearly provides that ETS may, in its judgment, rely on its agent s report and cancel the test scores. Although such a he said, she said case might be sufficient to overcome a motion for summary judgment if the suit was between Baker an d Hildebr ant, it is not sufficient on a breach of contract action between Hildebrant and ETS, because, under the terms of the contract, ET S has the right to rely on the report of its agen t, Baker. Here, the material fact at issue is whether ETS breached its contract with Hildebrant because it failed to act in good faith when it canceled h er test scores. In every contract there exists an implied covenant that the parties to the contract will act in good faith when dealing with each o ther. See, e.g., Food Fair v. Blumberg, 234 Md. 521, 534, 200 A.2d 166, 174 (1964). Hildebrant alleges that the test administrato r knowin gly lied in her rep ort, that this -12- knowledge of the report s falsity is imputable to ETS, and therefore ETS did not act in good faith when c anceling H ildebrant s sc ores becau se it knew the report w as false. Th us, to demons trate a genuine dispute of material fact regarding ETS s good faith, Hildebrant must show that Baker acted in bad faith, i.e., because Baker knew that the Superviso r s Irregularity Report she filed was false. ETS does not dispute that it must act in good faith, but it argues that Baker s knowledge, as an agent, is not imputable to ETS, the principal. We need not decide whether the knowledge of a testing administrator is imputable to ETS, because, even if we assume arguendo that Baker s knowledge is imputable to ETS, H ildebrant fails to establish by any evidence, under oath, that Baker acted in bad faith. Consequently, she has made no showing that ETS failed to act in good faith. Unless Hildebrant can show that there is a genuine issue of material fact regarding whether Baker acted in bad faith, she has no basis for a breach of contract claim against ETS. The record to op pose sum mary judgm ent before the trial court co nsisted of Hildebrant s affida vit. Our review of the action of the Circuit Court is based on this same record. Hildebrant s affidavit stated, in pertinent part, as follows: Each statement on the [Superviso r s Irregularity] report concerning my conduc t during the a dministration of the Assessment Test is false in every respect and has no basis in fact whatsoever. These statements are so contrary to any reasona ble understanding or interpretation of anything th at could have been observed that I have readily concluded that they were made w ith the knowledge th at they were false and with the intent to harm me pe rsonally. -13- Hildebrant argues that this portion of her affidavit creates a genuine dispute of material fact because it indicates that the statements made by the administrator were not true, and this, in turn, raises the clear inference that the test administrator falsified the report and, thus, acted in bad fa ith, whi ch is a m aterial fa ct as to w hether E TS bre ached the con tract. Hildebrant s affidavit presents the classic case of he said, she said. Baker reported that Hildebran t engaged in miscond uct, and H ildebrant de nies that the statements in the report are true. Hildebrant s affidavit fails to show facts that support her allegation that Baker acted in bad faith and that, therefore, ETS did not act in good faith when filing the Supervisor s Irregu larity Rep ort. Beatty, 330 Md. at 738 , 625 A.2d at 101 1 ( [M]ere general allegations which d o not show facts in detail a nd with p recision are in sufficient to prevent summary judgment. ). The affidavit consists only of a general denial and personal conclusion that the te st admin istrator k nowin gly made a false r eport. Hildebrant presents no evidence that indicates a factual basis for her allegatio ns. Thus, there is nothing other than Hildebrant s bare allegation that would lead the trial court to believe that Baker acted in bad faith. Without any factual evidence to support her allegations, there is no genuine dispute as to a ma terial fac t. Id. To sur vive su mmar y judgm ent, Hildebran t must show that it is genuinely disputed that Baker lied when reporting Hildebrant s testing conduct, because otherwise there is no dispute as to whether ETS acted in good faith. Hildebrant may not rest -14- upon mere allegations or denials of ETS s pleading, but must set forth specific facts showing that there is a genuine issue for trial. Hildebrant has not presented such facts. In her brief to th is Court, H ildebrant sets o ut additiona l facts that allegedly support her claim that the test administrator had a motive to falsify her report. For example, Hildebrant asserts that B aker could have ove rheard and been off ended w hen she jo kingly sang Welco me to the H otel California before the test began, and that Baker may have overheard someone referring to her as the Test Nazi. The additional fa ctual allegation s in briefs filed before this Court are not part of th e trial court reco rd and are n ot consider ed in our de novo review o f the grant o f summ ary judgmen t as they were n ot before th e Circuit Court. Harfo rd Co unty, ___Md. __ _, ___ A.2d __ _, 2007 WL 1119877 (20 07). Maryland Rule 2-501 (d) provides that a party opposing a motion fo r summary judgment may set forth in an affidavit the reasons why essential facts could not be established. Based on the affidavit, the trial court may deny the motion, order a continuance, or enter any other order that justice requires. M d. Rule 2-501 (d). H ildebrant did not avail herself of this proc edure; she c annot now urge us to consider that mandatory discovery had not been completed and that sh e has had little opportun ity to develop an y evidence in support of her claim. This Court considers only the record before the trial court, as Hildebrant acknowledges in her brief when she stated that evidence not in the record cannot be con sidered by this Co urt. -15- Hildebrant further asserts that her unsworn letter to ETS , dated Oc tober 9, 200 4, is additional evidence in support of her allegation that ETS did not act in good faith by canceling her scores because it relied up on Baker s report filed in bad faith.4 We disagree for several reasons. First, the letter is not a statement under oath. As Rule 2-501 makes clear, a response asserting the existence o f a material f act shall be su pported b y an affidav it or other statement under oath. The letter alleges only that certain acts occurred. H ildebrant s unsworn letter does not allege that Baker acted in bad faith nor does it claim that the alleged occurrences referenced in the letter supplied B aker with a motive to lie a nd to lie specifically about Hildeb rant s ac tions. N or can we reasonably infer from the letter that these occurrences motivated Baker to retaliate agains t Hildebran t. Indeed, Hildebrant concludes her letter by stating, I am willing to accept that the staff may think they were doing what they were instructed to do to maintain the secure, standard conditions you referred to in your letter. In this case, we cannot reasonably infer any facts in favor of Hildebrant, as Hildebrant has not presented any facts to support her claim that Baker acted in bad faith. Hildebrant has 4 In the letter to ETS, Hildebrant asserted that Baker s report to ETS simply reflects [Ms. Baker s] over-zealous perception of the test procedures, and stated that se veral even ts during the testing period corrobora te this conclusion. Hildebrant noted that Baker lectured them between test sections about getting into the shoes of their students, discussed a long list of ways in which test takers cheat on exams, and lectured test takers before a test section after a cell phone inadvertently had rung during the previous section. Hildebrant also stated that the proctor s rudeness was so pervasive that some referred to Baker as the Testing Nazi as th ey walked o ut of the test. -16- not presented facts to show th at Baker h ad any motiv e to lie or to act in bad faith. N oticeably absent from the affidavit in opposition to summary judgment, the only statement in this record under oath, is any refer ence to the facts that Hildebrant now relies upon. That Baker may have heard Hildebrant sing Hotel California or hear another test taker refer to Baker as the test Nazi was not in the affidavit or in any other statement under oath, such as a deposition or interrogatory. Hildebrant not only fails to present such facts and to support them by an affidavit or other statement under oath, but also fails to link how such facts caused Baker to make a report in bad faith which was then relied upon by ETS. The Court of Special A ppeals held that Baker s knowledge is imputable to ETS. Assuming arguendo that we agree, there is nothing under oath here that demonstrates bad faith on the part o f Baker. H ildebrant s af fidavit prese nts a genera l, conclusory de nial of misconduct and is not sufficient to establish a genuine dispute of material fact as to whether Baker acted in bad faith. Hildebrant must support her assertions of material fact by affida vit, discovery response, transcript of testimony, or other statement under oath that demonstrates the dispute of material fact. M d. Rule 2-501 (b). The trial court held that a contract existed between the parties, and that the contract reserved to ETS th e judgme nt of wh ether to can cel a test-taker s scores. We agree. ETS has the right, under the Bulletin, to cancel test scores where ETS or test center personnel find that there is misconduct in connection with the test. Hildebrant wrote out and signed a certification statement indicating that she agreed to the conditions set forth in the Bulletin. -17- Moreover, Hildebran t has ackno wledged on record that she is a pa rty to the contract with ETS. Baker s report that Hildebrant engaged in misconduct on the test triggered the terms of the Bulletin, and it was com pletely within ETS s rights under that contract to cancel Hildebrant s scores. Consequently, we hold that the trial judge was correct in granting summary judgment for ETS where Hildebrant acknowledged her acceptance of the contract with ETS and did not create a genuine issue of material fact as to whether Baker had acted in bad faith. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REM ANDED TO T H AT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FO R MONTGOMERY COUNTY. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. -18-

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