McCrory Corp. v. Fowler, 11

CourtCourt of Appeals of Maryland
Citation570 A.2d 834,319 Md. 12
Docket NumberNo. 11,11
Parties, 53 Empl. Prac. Dec. P 39,752 McCRORY CORPORATION v. Robert G. FOWLER Sept. Term 1988.
Decision Date07 March 1990

Page 12

319 Md. 12
570 A.2d 834, 53 Empl. Prac. Dec. P 39,752
Robert G. FOWLER
No. 11 Sept. Term 1988.
Court of Appeals of Maryland.
March 7, 1990.

Jean V. MacHarg (Ronald S. Liebman, Daniel E. Waltz, Patton, Boggs & Blow, Washington, D.C.; Jeffrey R. Mann, Paul H. Aloe, Rubin, Baum, Levin, Constant & Friedman, New York City, on brief), for appellant.

Barry Goldstein, Washington, D.C. (Gary Howard Simpson, Bethesda, Daniel B. Edelman of Washington, D.C., J. LeVonne Chambers, New York City, on brief), for appellee.

Page 13

Michael L. Foreman, Gen. Counsel, Glendora C. Hughes, Asst. Gen. Counsel, on brief, for amicus curiae State of Maryland Com'n on Human Relations of Baltimore.



Pursuant to the Maryland Uniform Certification of Questions of Law Act, 1 the United States District Court for the District of Maryland has certified to this Court the following two questions concerning a Montgomery County ordinance:

"(1) Did enactment of Section 27-20(a) of the Montgomery County Code, which creates a private cause of action for employment discrimination entitling a claimant to sue for damages, injunctive or other civil relief, exceed the authority delegated to chartered home rule counties by the Express Powers Act, Md.Ann.Code art. 25A, Section 5 (1987)?

"(2) If enactment of Section 27-20(a) did not exceed the authority delegated by the Express Powers Act, is it nevertheless invalid under Article XI-A, Section 3 of the Maryland Constitution because it conflicts with or is preempted by the laws and policies of the State as set forth in Article 49B of the Maryland Code?"

The United States District Court further stated that "the form of the Court of Appeals' response" should not be dependent on the above formulation of the questions, and that it "hopes that the Court of Appeals will feel free to render its opinion in the manner which it deems most appropriate."

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We hold that, although the Montgomery County ordinance is not preempted by Art. 49B of the Maryland Code, 2 nevertheless it [570 A.2d 835] is not a "local law" under Article XI-A of the Maryland Constitution. Thus, the Express Powers Act, Code (1957, 1987 Repl.Vol.), Art. 25A, did not and could not authorize Montgomery County to enact the ordinance.

Robert Fowler, a white male, managed a store for McCrory Corporation. Fowler alleged that one of McCrory's managers told him not to hire any more black persons or persons under thirty-five years of age, and that when Fowler requested McCrory executives to repudiate this directive, they refused to do so. Thereafter, Fowler claimed, he was harassed and eventually constructively discharged in retaliation for his protest. Fowler brought an action for money damages against McCrory in the Circuit Court for Montgomery County, asserting a cause of action under 42 U.S.C. § 1981 and a common law cause of action for abusive discharge. At McCrory's request, the case was removed to the United States District Court for the District of Maryland. Fowler filed an amended complaint in the United States District Court, deleting the common law abusive discharge count and adding a count under § 27-20(a) of the Montgomery County Code, which creates a private cause of action to remedy violations of a county anti-employment discrimination ordinance. Fowler was granted leave to file a second amended complaint, in which he added a cause of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

McCrory filed a motion to dismiss the cause of action based upon § 27-20(a) of the Montgomery County Code, arguing, inter alia, that the section exceeds the authority delegated to chartered home rule counties.

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Section 27-20(a) is part of a legislative scheme enacted by the Montgomery County Council to combat discrimination. Chapter 27, Article I, of the Montgomery County Code establishes the Montgomery County Commission on Human Relations and provides for its jurisdiction. Sections 27-1 through 27-7B of Article I concern the administration, duties and procedures of the Commission. The remaining sections of Article I are divided into four divisions, with each division addressing a different area of discrimination: Places of Public Accommodation, Real Estate, Employment, and "Racial and Religious Intimidation." This case involves the third division, employment, codified at §§ 27-17 through 27-26.

Section 27-19(a) makes it an unlawful employment practice for an employer to discriminate against any individual because of the individual's race, color, religious creed, ancestry, national origin, age, sex, marital status, handicap, or sexual orientation. Fowler contended that McCrory violated this section by engaging in unlawful employment discrimination based on race and age. Section 27-19(b) prohibits retaliation against any person on account of that person's lawful opposition to a violation of, inter alia, § 27-19(a). Fowler claimed that McCrory engaged in unlawful retaliation against him.

Section 27-20(a) creates the cause of action at issue in this case:

"Any person who has been subjected to any act of discrimination prohibited under this division shall be deemed to have been denied a civil right and shall be entitled to sue for damages, injunction or other civil relief, including reasonable attorney's fees; provided, however, that no suit shall be commenced until forty-five (45) days after a complaint alleging such an act of discrimination has been filed with the commission...."

In this suit under the above-quoted ordinance, Fowler is seeking over $1.8 million in compensatory and punitive damages.

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Montgomery County has chartered home rule under Article XI-A of the Maryland Constitution. Article XI-A was proposed by Ch. 416 of the Laws of Maryland of 1914 and ratified by the voters on November 2, 1915. The Article, known as the Home Rule Amendment, enabled counties, which chose to adopt a home rule charter, to achieve a significant degree of political self-determination. Its purpose was to [570 A.2d 836] transfer the General Assembly's power to enact many types of county public local laws to the Art. XI-A home rule counties. See generally, e.g., Bd. of Election Laws v. Talbot County, 316 Md. 332, 344, 558 A.2d 724 (1989); Griffith v. Wakefield, 298 Md. 381, 384, 470 A.2d 345 (1984); Town of Forest Heights v. Frank, 291 Md. 331, 342, 435 A.2d 425 (1981); Cheeks v. Cedlair Corp., 287 Md. 595, 597-598, 415 A.2d 255 (1980). As the Court explained in State v. Stewart, 152 Md. 419, 422, 137 A. 39, 41 (1927) (emphasis supplied):

"The wisdom of incorporating in the organic law of the state such provisions as are contained in this article had been urged for a number of years prior to its adoption, the reasons assigned by its proponents being that a larger measure of home rule be secured to the people of the respective political subdivisions of the state in matters of purely local concern, in order that there should be the fullest measure of local self-government, and that these local questions should thus be withdrawn from consideration by the General Assembly, leaving that body more time to consider and pass upon general legislation, and to prevent the passage of such legislation from being influenced by what is popularly known as 'log-rolling'; that is, by influencing the attitude and vote of members of the General Assembly upon proposed general laws by threatening the defeat or promising the support of local legislation in which a particular member might be peculiarly interested."

Sections 1 and 1A of Article XI-A empower Baltimore City and the counties of Maryland to adopt a charter form of local government. Section 2 directs the General Assembly

Page 17

to provide a grant of express powers for charter home rule counties. The General Assembly followed that directive and enacted the Express Powers Act by Ch. 456 of the Laws of Maryland of 1918, codified as Code (1957, 1987 Repl.Vol.), Art. 25A. Section 3 of Article XI-A provides (emphasis supplied):

"From and after the adoption of a charter by the City of Baltimore, or any County of this State, as hereinbefore provided, the Mayor of Baltimore and City Council of the City of Baltimore or the County Council of said County, subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws of said city or county ... upon all matters covered by the express powers granted as above provided...."

Article XI-A "does not constitute a grant of absolute autonomy to local governments." Ritchmount Partnership v. Board, 283 Md. 48, 56, 388 A.2d 523, 529 (1978). This Court's decisions and the above-quoted passage make it clear that the Home Rule Amendment limits the Montgomery County Council to enacting "local laws" on matters covered by the Express Powers Act.

Thus, it is first necessary to determine whether § 27-20(a)...

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