State Com'n on Human Relations v. Anne Arundel County

• Decision Date: 01 September 1994
• Docket Number: No. 1734,1734
• Citation: 106 Md.App. 221,664 A.2d 400
• Parties: , 7 NDLR P 89 STATE of Maryland COMMISSION ON HUMAN RELATIONS v. ANNE ARUNDEL COUNTY, Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 221

106 Md.App. 221

664 A.2d 400, 7 NDLR P 89

STATE of Maryland COMMISSION ON HUMAN RELATIONS v. ANNE ARUNDEL COUNTY, Maryland.

No. 1734, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Sept. 5, 1995.

Lee D. Hoshall, Asst. Gen. Counsel (Glendora C. Hughes, General Counsel, on the brief), Baltimore, for appellant.

Gail Thuman Watson, Asst. County Atty. (Phillip F. Scheibe, County Atty., on the brief), Millersville, for appellee.

Argued before BISHOP, BLOOM and HARRELL, JJ.

HARRELL, Judge.

Appellant, the Maryland Commission on Human Relations ("the Commission"), ostensibly filed this appeal after the Circuit Court for Anne Arundel County affirmed an order by the Commission's Appeal Board ("the Board") dismissing a charge of employment discrimination that had been maintained by the Commission staff against Anne Arundel County ("the County"). The charges against the County stemmed from a complaint of discrimination filed in October 1990 by James F. Tucker. Tucker alleged that the County had unlawfully discriminated against him when it had excluded him from consideration for employment as a firefighter/emergency medical technician due to a congenital color vision deficiency. Hearings on the matter were held before an administrative law judge ("ALJ") of the Office of Administrative Hearings. The ALJ issued a provisional decision and order dismissing the charges based upon his determination that the Commission staff and Tucker had failed to satisfy their burden of demonstrating that Tucker met the definition of a 'handicapped individual' under Md.Ann.Code, Art. 49B, § 15(g). The Commission staff appealed the ALJ's decision to an appeal board of the Commission, which affirmed the ALJ's order dismissing Tucker's complaint. A Petition for Judicial Review was filed on behalf of the Commission in the Circuit Court for Anne Arundel County. A subsequent timely appeal to this Court followed the circuit court's affirmance of the Board's decision.

BACKGROUND

To aid in the understanding of the case sub judice, we begin with a contextual overview of the administrative process that employment discrimination complaints follow in Maryland. ¹ The Commission, originally established by the General Assembly in 1927, ² administers and enforces the Maryland Fair Employment Practices Law, Public Accommodations Law, and Housing Discrimination Law. The Commission is composed of nine members who are appointed by the Governor for terms of six years. Maryland Ann.Code, Art. 49B, § 1. The Governor also appoints the Commission's Executive Director from a list of five names submitted by the nine Commission members. Art. 49B, § 2(a). General counsel for the agency is appointed by the Executive Director with the approval of the Commission members. Art. 49B, § 2(c).

Article 49B, § 9A provides that any person claiming to be aggrieved by an alleged act of unlawful employment discrimination may file a complaint in writing with the Commission stating the name of the person or entity alleged to have committed the act of discrimination and the particulars thereof. See also Md.Regs.Code tit. XIV, § 03.01.02A ("COMAR"). After the filing of a complaint, the Executive Director of the Commission considers the allegations. Art. 49B, § 10. If it is deemed valid in accordance with the considerations set forth in COMAR 14.03.01.02F(1), the complaint is authorized by the Executive Director or his or her designee. COMAR 14.03.01.03F(2). The matter is then referred to other Commission staff for prompt investigation. The Commission staff must serve upon the respondent a copy of the complaint and the written findings of the staff. Art. 49B, § 10; COMAR 14.03.01.03G.

If the staff's written findings indicate that there is probable cause for believing that a discriminatory act within the scope of Article 49B has been committed, the Commission staff, the complainant, and the respondent are required to enter into a process of conciliation in order to attempt to achieve a just resolution of the discriminatory practice. Art. 49B, § 10(b); COMAR 14.03.01.07A. If no agreement can be reached, the Executive Director or deputy director may terminate the efforts to conciliate the dispute and certify the case for public hearing. COMAR 14.03.01.07B. Thereafter, the Executive Director forwards the certified case to the Commission's general counsel for further processing. COMAR 14.03.01.08A(2). Upon reviewing the file, the general counsel either remands the case to the Executive Director or designee for further investigative proceedings, or prepares the case for public hearing. COMAR 14.03.01.08A(3).

In preparing the case for hearing, the Commission's general counsel formulates a written statement of charges in support of the complaint. The statement of charges is then forwarded to a Commission-appointed hearing examiner (currently an ALJ of the Office of Administrative Hearings) ³ together with a request for a hearing date. COMAR 14.03.01.08B(1). After considering all of the evidence, the ALJ issues a written provisional order that chronicles the facts upon which it is based, resolves all disputed issues of material fact, and states his or her conclusions of law. COMAR 14.03.01.09H. The provisional order also sets forth the appropriate relief to be granted in the event of a finding that the respondent has engaged in an unlawful discriminatory act. Id.; Art. 49B, § 11(e). If no discriminatory act is found, the ALJ states his or her findings of fact and issues an order dismissing the complaint. Art. 49B, § 11(g); COMAR 14.03.01.09H(3).

Either the Commission staff, the respondent, or the complainant may note an appeal from the provisional order to an appeal board of the Commission. COMAR 14.03.01.10A(1). It is this right of further administrative appeal that makes the ALJ's decision provisional. If no timely appeal is taken, the ALJ's decision becomes the final decision of the Commission. COMAR 14.03.01.09H(5). If an appeal to an appeal board is noted, the status of the ALJ's decision is subject to the outcome of that appeal.

The chairperson of the Commission appoints an appeal board of three commissioners who decide the appeal. COMAR 14.03.01.10D; Art. 49B, § 3(d). The board determines whether it wishes to hear oral argument. After considering the evidence that was before the ALJ, the board may affirm, reverse, or modify the provisional order in accordance with the standards set forth in the Commission's rules of procedure. COMAR 14.03.01.10F(1); see also Kohli v. LOOC, Inc., 103 Md.App. 694, 654 A.2d 922 (1995). The board then issues the final decision and order of the Commission. When applicable, all parties to the case are served with a notice of the right to apply for judicial review of the final order under the appropriate provisions of the Maryland Administrative Procedures Act ("APA"). COMAR 14.03.01.10F(4).

Maryland Code Ann., State Gov't § 10-222 (Supp.1994) of the APA governs all actions for judicial review of administrative agency decisions filed on or after 1 June 1993. ⁴ A party to a contested case who is aggrieved by the final decision of the agency is entitled to seek judicial review of the decision as provided in that section. Section 10-222 specifically provides that an agency is permitted to seek judicial review of a decision if the agency was a party to the proceedings before the agency. § 10-222(a)(2). In a proceeding for judicial review pursuant to § 10-222, the court may:

(1) remand the case for further proceedings;

(2) affirm the final decision; or

(3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision:

(i) is unconstitutional;

(ii) exceeds the statutory authority or jurisdiction of the final decision maker;

(iii) results from an unlawful procedure;

(iv) is affected by any other error of law;

(v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious.

Section 10-222(h).

FACTS

On 22 February 1990, James F. Tucker applied for the position of Firefighter II with the Anne Arundel County Fire Department. Firefighter II is an entry level position that entails several emergency services responsibilities, including extinguishing fires, operating fire and rescue equipment, and rendering emergency medical care to sick and injured persons. The Anne Arundel County selection process for this position required Tucker to submit to a written and oral evaluation, a preliminary physical and medical screening, a physical and medical examination, a background investigation, and a final selection review.

Upon successfully completing the written examination and oral interview, Tucker was placed in the "most qualified group for further processing." He was therefore permitted to proceed with the next phase, involving the preliminary medical screening, which he completed on 16 May 1990 at the Chesapeake Medical Center. In part, the screening involved the administration of the Ishihara Plate Test, a commonly used vision screening examination that consists of a series of printed plates of different colored dots patterned in the shape of numbers. Tucker, who was employed as a tractor-trailer driver, had been tested for color vision on three previous occasions as part of physical examinations mandated by the United States Department of Transportation because of his employment. Although he had passed each of those prior visual examinations, Tucker failed the Ishihara test. As a result, he was referred to the Wilmer Eye Institute of the Johns Hopkins University School of Medicine. There, Tucker was administered the Anamoloscope Plate Test ("APT"), which differentiates between persons whose color vision is classified as "anomalous trichromacy" (a disorder in which an individual discriminates colors using the red, blue, and green primary colors of normal vision, but is...