STATE COM'N ON HUMAN RELATIONS v. Freedom Express/Domegold, Inc.

• Decision Date: 06 June 2003
• Docket Number: No. 33,33
• Parties: STATE of Maryland COMMISSIONS ON HUMAN RELATIONS v. FREEDOM EXPRESS/DOMEGOLD, INC.
• Court: Maryland Court of Appeals

825 A.2d 354

375 Md. 2

STATE of Maryland COMMISSIONS ON HUMAN RELATIONS v. FREEDOM EXPRESS/DOMEGOLD, INC.

No. 33, Sept. Term, 2001.

Court of Appeals of Maryland.

June 6, 2003.

Patricia A. Wood, Asst. Gen. Counsel (Glendora C. Hughes, Gen. Counsel, and Elizabeth Colette, Tracy E. Ashby, Asst. Gen. Counsel, on brief), Baltimore, for Appellant.

Jack L.B. Gohn (Gohn, Hankey & Stichel, L.L.P., on brief), Baltimore; Nathan J. Greenbaum (Linowes & Blocher, L.L.P., on brief), Silver Spring as amici.

Argued before BELL, C.J. ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

ELDRIDGE, Judge.

The issue in this case concerns the scope of a trial court's authority in an action by the Maryland Commission on Human Relations to enforce an administrative subpoena pursuant to Maryland Code (1957, 1998 Repl.Vol.), Art. 49B, § 11(d).

I.

Prior to May 27, 1997, Mrs. Marvinette Karasek was employed by the defendant-appellee, Freedom Express/Domegold, Inc., the operator of a pharmacy, as a "pharmacist technician." On June 6, 1997, Mrs. Karasek filed with the Commission on Human Relations a complaint against the defendant, asserting discrimination because of her gender and because of pregnancy, in violation of Art. 49B, § 16.¹ Mrs. Karasek's complaint alleged that prior to May 27, 1997, she had never had any complaints about her work performance, that on May 19, 1997, she informed Harvey Goldberg, the owner of the defendant corporation, that she was pregnant, and that on May 27, 1997, Mr. Goldberg informed her that she "was being terminated because [her] work was not up to par." The complaint further alleged that another female pharmacist technician, who was having work problems but who was not pregnant, was "sent ... to another pharmacy to be retrained, according to company policy." The complaint also stated that Mr. Goldberg "told a co-worker that `pregnant women are walking law suits.' " Finally, the complaint alleged that the defendant had between 15 and 100 employees.

Sometime later in 1997, Mrs. Karasek filed with the Human Relations Commission a second complaint alleging further unlawful discrimination in the form of retaliation for filing the first complaint. The second complaint alleged that, upon being terminated in May 1997, Mrs. Karasek filed for and began receiving unemployment benefits, that "[o]n 6/28/97, I received a letter from the Unemployment Office stating that my employer Freedom Express/Domegold had filed an objection to my unemployment benefits," and that "I believe that my employer's objection was in retaliation for filing the original charge of discrimination."

In accordance with Art. 49B, § 10, the Executive Director of the Commission referred the complaints to the Commission's staff for investigation.² In attempting to investigate and obtain information from the defendant, the Commission's staff was consistently met with a refusal based on the defendant's assertion that the Commission had "no jurisdiction" over the defendant. The "no jurisdiction" assertion was based upon the defendant's allegation that it had less than fifteen employees and that, therefore, it was not an "employer" within the meaning of the "Discrimination In Employment" subtitle of Art. 49B, §§ 14-18.³ In response, the Commission asked for documentation concerning the allegation of having fewer than fifteen employees, as well as information relating to Mrs. Karasek's complaints. In one 1999 letter, the Commission stated:

"It is fully understood that Respondent operates more than one pharmacy, with each being a separate corporation and operating as such. This does not negate the fact that personnel is not being shared among each pharmacy. Thus, ownership is not irrelevant.

"Every effort should be made on Respondent's part to provide this information within five (5) days from the date of this letter. Failure to do so will result in the issuance of a subpoena."

Having received no further information from the defendant, the Commission on December 22, 1999, issued a subpoena duces tecum to the defendant, seeking documents concerning the defendant's corporate structure, the employer's quarterly federal tax returns for businesses owned or operated by Harvey Goldberg, and documents relating to the discharge of Mrs. Karasek.⁴ The defendant did not furnish the documents sought by the subpoena, and on February 28, 2000, the Commission's Assistant General Counsel wrote to the defendant's attorney, stating, inter alia, as follows:

"As you have been advised, operations between separate and distinct legal entities may be integrated as to constitute a single employer for purposes of ... Article 49B. Four factors generally are considered: (1) interrelation of operations; (2) centralized control of labor relations and personnel; (3) common management; and (4) common ownership and financial control.

"The only information you have provided to support your allegation of lack of jurisdiction is the number of employees for one entity owned or operated by Harvey Goldberg. Information must also be provided regarding Mr. Goldberg's other businesses, including all Freedom Express, Freedom Pharmacy and Freedom Drug stores. Relevant and necessary information includes, but is not limited to: (1) Articles of Incorporation, (2) source of payroll checks, workers' compensation, unemployment and other benefits, (3) hiring practices, (4) personnel forms and procedures, and (5) the legal counsel, for each entity owned or operated by Mr. Goldberg.

"Despite repeated requests, you have failed to provide this relevant and necessary information. Unfortunately, your client has failed even to respond to the Commission's subpoena seeking relevant and necessary information. In addition to the assertion of lack of jurisdiction, you indicate that your client's position is that the Commission is not entitled to all of the information sought by the subpoena. However, you do not specify what information your client believes the Commission is not entitled to or why your client believes the Commission is not entitled to it. Accordingly, on March 6, 2000, the Commission will file an action for the issuance of a court order compelling compliance, unless the subpoenaed documents are delivered prior to that date."

The defendant then turned over to the Commission articles of incorporation and redacted employer's quarterly federal tax returns "For Harvey Goldberg's Corporations: Domegold, Aerogold, Norgold and Bergold." None of the other requested documents were submitted to the Commission.

Next, the Commission informed the defendant that the documents submitted indicated that the four corporations were "integrated entities so as to constitute a single employer for purposes of ... Article 49B." The Commission pointed to documents showing that Mr. Goldberg was the president of each corporation, that they all had the same principal place of business, and that the wages and benefits were the same with respect to each corporation. The Commission requested that the defendant comply with the other parts of the subpoena "in order that the Commission's investigation of this matter can be completed." The defendant replied by refusing to supply additional documents and asserting: "there is no jurisdiction over Domegold and the subpoenaed items going to the issue of jurisdiction have been provided...."

Pursuant to Art. 49B, § 11(d)(3), the Commission filed, in the Circuit Court for Baltimore City, the present action to enforce the administrative subpoena.⁵ The Commission's "Petition for Enforcement" stated that the "subpoena is to obtain information necessary and relevant to the Commission's investigation as required pursuant to Article 49B, § 10," and that the defendant Freedom Express/Domegold, Inc. "has refused to produce the requested documents." The Commission's petition went on to set forth in detail the factual allegations of Mrs. Karasek's complaints, the history of the case, and the correspondence between the Commission and the defendant.

The defendant's answer in the Circuit Court repeatedly stated, inter alia, that the Commission "has received the subpoenaed information which establishes that the Petitioner does not have jurisdiction, as Domegold, Inc. did not have `fifteen or more employees....' " The defendant requested that the court dismiss the petition for "lack of jurisdiction over the subject matter...."

Following a hearing, the Circuit Court issued an order which neither enforced the subpoena, nor denied enforcement, nor dismissed for lack of jurisdiction. Instead, the court

"ORDERED that the case be remanded to the Maryland Commission on Human Relations for the purpose of conducting an evidentiary hearing to determine whether a sufficient basis existed at the time the subject complaints were filed to treat the then extant corporate entities owned and controlled by Harvey Goldberg as a `single employer' for purposes of establishing jurisdiction by the Commission. The exhibits which were entered into the record before this Court by stipulation are insufficient to determine more than the common ownership and financial control of the various corporate entities by Mr. Goldberg. The other factors which courts have deemed relevant to this inquiry cannot be determined on the basis of the record before the Court and the Court's suspicion that the operations of these entities were sufficiently integrated is an insufficient predicate upon which to establish the Commission's jurisdiction at this juncture. Accordingly, the case must be remanded to the Commission for an evidentiary hearing...."

On the day after the Circuit Court's order, the Commission filed a motion for reconsideration, arguing, among other things, "that there is no authority under Article 49B for the Court to order the Commission to conduct an evidentiary hearing" at this stage of the case and that there had been no exhaustion of administrative remedies. In response, the defendant urged the...