Parlato v. State Com'n on Human Relations

• Decision Date: 01 September 1988
• Docket Number: No. 80,80
• Citation: 76 Md.App. 695,548 A.2d 144
• Parties: Charles F. PARLATO v. STATE of Maryland COMMISSION ON HUMAN RELATIONS. ,
• Court: Court of Special Appeals of Maryland

Page 695

76 Md.App. 695

548 A.2d 144

Charles F. PARLATO v. STATE of Maryland COMMISSION ON HUMAN RELATIONS.

No. 80, Sept. Term, 1988.

Court of Special Appeals of Maryland.

Oct. 5, 1988.

Benjamin Lipsitz, Baltimore, for appellant.

Lee D. Hoshall (Henry B. Ford, on the brief), Baltimore, for appellee.

Argued before GARRITY, ROSALYN B. BELL and KARWACKI, JJ.

KARWACKI, Judge.

On February 17, 1983, Charles F. Parlato, the appellant, filed a complaint with the Maryland Commission on Human Relations (the Commission) in which he alleged that his employer, Abbott Laboratories, had discharged him because of race and age in violation of Md.Code Ann., Art. 49B, § 16(a). After receiving the complaint, the Commission pursuant to Art. 49B, § 10 instituted a preliminary investigation to determine whether appellant's claim was colorable, justifying further administrative action against Abbott Laboratories.

That investigation revealed that Parlato, a 55 year old male Caucasian, had been employed by Abbott Laboratories as a hospital sales representative from 1969 until October 4, 1982 when he was fired. In March of 1982 one of Abbott Laboratories' regional managers submitted a report indicating that Parlato's job performance was unsatisfactory. Specifically, his sales receipts were considered inadequate. Pursuant to that regional manager's request, Abbott Laboratories presented Mr. Parlato with a "performance evaluation and action plan," which he acknowledged on April 9, 1982. During the evaluation period, appellant's poor performance persisted, causing Abbott Laboratories to place him on probation. Parlato was notified that his resignation would be requested if his performance did not appreciably improve.

With this information, together with statistics on the racial and age patterns of Abbott Laboratories' hiring and firing practices, the Commission's staff on October 11, 1983 issued its finding that there was no probable cause to believe appellant was terminated due to his race or age. On November 10, 1983, appellant requested reconsideration of the finding, which was granted on December 16, 1985. ¹ The Commission conducted a further investigation to aid in its reconsideration. On August 3, 1987, however, the Commission's Deputy Director sustained the "no probable cause" finding. From this decision Parlato appealed to the Circuit Court for Baltimore City, which dismissed the case for lack of subject matter jurisdiction. Parlato's appeal of that dismissal to this Court is based on alternative grounds. He asserts:

(a) The Commission's sustaining of its no probable cause finding was appealable under the Maryland Administrative Procedure Act.

(b) [Art 49B] Sec. 10(d) could not constitutionally deprive the lower court of subject matter jurisdiction of Parlato's appeal.

(a) Subject Matter Jurisdiction

We begin our analysis by noting that judicial review of administrative action is generally a creature of legislative will as opposed to constitutional or common law right. Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 500, 331 A.2d 55 (1975). ("An appellate right is entirely statutory in origin and no person may prosecute an appeal unless the right is conferred by statute."); Urbana Civic Association v. Urbana Mobile Village, Inc., 260 Md. 458, 461, 272 A.2d 628, (1971); Warwick Corporation v. Department of Transportation, 61 Md.App. 239, 244, 486 A.2d 224 (1985). The primary source from which the power and right of judicial review may arise is the enabling statute which defines the scope of the particular agency's power. The relevant statute in this case is Article 49B, § 10, which provides:

(a) After the filing of any complaint the executive director shall consider the complaint and shall refer it to the Commission's staff for prompt investigation and ascertainment of the facts. The results of the investigation shall be made as written findings. A copy of the findings shall be furnished to the complainant and to the person, firm, association, partnership or corporation (hereinafter referred to as the "respondent"), against whom or which the complaint is made.

(b) If the finding is that there is probable cause for believing a discriminatory act has been or is being committed within the scope of any of these subtitles, the Commission's staff immediately shall endeavor to eliminate the discrimination by conference, conciliation, and persuasion, and shall forward a written copy of the findings of any investigation of a real estate agent or broker to the real estate commission.

(c) If an agreement is reached for the elimination of the discrimination as a result of the conference, conciliation and persuasion the agreement shall be reduced to writing and signed by the respondent, and an order shall be entered by the Commission setting forth the terms of the agreement. The Commission shall not enter an order at this stage of the proceedings unless it is based upon a written agreement. If no such agreement can be reached, a finding to that effect shall be made and reduced to writing with copies furnished to the complainant and to the respondent.

(d) A denial of the request for reconsideration of a finding of no probable cause by the Commission is a final order appealable to the circuit court as provided in § 10-215 of the State Government Article of this Code provided that the United States Equal Employment Opportunity Commission does not have jurisdiction over the subject matter of the complaint. (emphasis supplied)

Subsection d was added to § 10 in 1982 when Senate Bill 419 was enacted as Ch. 129, Acts of 1982. The preamble to that law recites that its passage was "for the purpose of creating a right of appeal from a no probable cause finding by the Human Relations Commission under certain circumstances." (Emphasis in original.) As originally introduced S.B. 419 provided that a denial of a request for reconsideration of a finding of "no probable cause" by the Commission would be appealable whatever the alleged ground of discrimination might have been. The bill was amended, however, in the Constitutional and Public Law Committee of the Senate to add the language of § 10(d) which is emphasized above. That amendment recognized that certain classes of persons who are protected from discrimination by Article 49B, e.g., persons alleging discrimination based on marital status, physical or mental handicap, as well as those who alleged discrimination in housing and public accommodation, had no standing to air their complaints before the United States Equal Employment Opportunity Commission (EEOC) or to sue in the federal courts for redress of such discrimination. By enacting S.B. 419 as so amended the General Assembly clearly limited the right to appeal a "no probable cause" finding to those classes of alleged victims of discrimination. As to persons who were entitled to relief from the EEOC or the federal courts under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (1982) or the Age Discrimination in Employment Act, 29 U.S.C. § 626 (Reorganization Act of 1977, 5 U.S.C. § 901 et seq.), the General Assembly expressly denied any right of appeal from a "no probable cause" finding. Appellant's complaints of racial and age discrimination were within the jurisdiction of the EEOC, and consequently he was given no right of appeal from the Commission's finding in the instant case.

The appellant does not assail this plainly expressed legislative intent. Rather, he asserts that his right to judicial review of the Commission's no probable cause finding is authorized by the Administrative Procedure Act (APA). State Govt.Code Ann. § 10-101 et seq. The APA provides that any party who is aggrieved by the final decision of an administrative agency in a contested case is entitled to judicial review of that decision by a circuit court. State Govt.Code Ann. § 10-215. Thus, the judicial review is limited to decisions of an agency in a "contested case." That term is defined in § 10-201 of the APA:

(c) "Contested case" means a proceeding before an agency to determine:

(1) a right, duty, statutory entitlement, or privilege of a person that is required by law to be determined only after an opportunity for an agency hearing; ...

The Court of Appeals and this Court in reviewing this definition have held that it is applicable to proceedings conducted by the agency in a quasi-judicial capacity where its decision immediately affects or adjudicates the rights or property of specific parties. Prince George's County v. Blumberg, 288 Md. 275, 295-96, 418 A.2d 1155 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981); Elprin v. Howard County Board of Education, 57 Md.App. 458, 463-67, 470 A.2d 833, cert. denied, 300 Md. 88, 475 A.2d 1200 (1984). We hold that the investigation of appellant's complaint of discrimination which resulted in its no probable cause finding was not such a "contested case" and explain.

Article 49B, § 10(a) authorizes the executive director of the Commission to commence an investigation into the existence of discriminatory practices upon receiving a complaint by an aggrieved party. The Commission Rules of Procedure complement § 10(a) by providing that the case must be assigned to:

a staff investigator who shall endeavor to gather promptly all information necessary and relevant to the making of a fair determination of the alleged discrimination. Any such investigation ... shall conclude with a written finding ....

COMAR 14.03.01.03A. Additionally, a fact finding conference may be held pursuant to COMAR 14.03.01.03B for the purposes of:

defining the issues contained in a complaint, determining which elements are undisputed, resolving those issues which are susceptible of resolution and ascertaining whether or not there is a basis for a negotiated settlement of the complaint.

Finally, COMAR 14.03.01.03C and 14.03.01.03E respectively authorize the Commission investigator and...