Vavasori v. Commission on Human Relations

• Decision Date: 15 November 1985
• Docket Number: No. 288,288
• Parties: Louis VAVASORI v. COMMISSION ON HUMAN RELATIONS, et al. Sept. Term 1985.
• Court: Court of Special Appeals of Maryland

Page 237

65 Md.App. 237

500 A.2d 307

Louis VAVASORI v. COMMISSION ON HUMAN RELATIONS, et al.

No. 288 Sept. Term 1985.

Court of Special Appeals of Maryland.

Nov. 15, 1985.

Benjamin Lipsitz, Baltimore, for appellant.

Sally L. Swann (Risselle Rosenthal Fleisher and Denise Noonan Slavin, on brief), Baltimore, for appellee, Com'n on Human Relations.

Peter S. Saucier (N. Peter Lareau and Venable, Baetjer & Howard, on brief), Baltimore, for appellee, Vulcan-Hart Corp.

Argued before GARRITY, ADKINS and KARWACKI, JJ.

KARWACKI, Judge.

Louis Vavasori appeals from an order of the Circuit Court for Baltimore City (Hammerman, C.J.), which affirmed the decision of the Maryland Commission on Human Relations (the Commission) that Vulcan-Hart Corporation, his employer, had not discriminated against him on the basis of a physical handicap.

The appellant presents two issues for our decision. First, he contends that he was denied due process in not being afforded a sufficient opportunity to present evidence to the Commission of his claim of discrimination by his employer. Second, the appellant argues that the finding by the Commission of no probable cause to believe that there was discrimination is not supported by substantial evidence.

This is the second time that the appellant has brought his claim of discrimination to this Court. The first occasion resulted in a December 27, 1982 unreported opinion by this Court (Vavasori v. Vulcan-Hart Corp., No. 209, September Term, 1982; per curiam ), reversing a ruling of the Baltimore City Court. ¹ There, the lower court had dismissed the appellant's appeal from the Commission's finding of no probable cause of discrimination against him on the basis that the court had no jurisdiction to review the Commission's conclusion. We held in our 1982 opinion that the appellant was entitled to his "day in court," and the appellant's case was remanded to the lower court where a hearing was held. On January 25, 1985, the Circuit Court for Baltimore City found that there was substantial evidence to support the Commission's finding of no probable cause and affirmed the dismissal of the appellant's complaint.

This case had its genesis on January 9, 1979 when the appellant filed a complaint with the Commission alleging that Vulcan-Hart ² had engaged in unlawful employment discrimination against him. The appellant specifically alleged that his employer laid him off from his job as a press brake operator ³ because his bad back (he had undergone a spinal fusion which limited him to working no more than 40 hours per week) prevented him from working 10 hour shifts. The appellant further complained that his employer honored similar work restrictions with respect to other employees with physical handicaps.

The appellant began work for Vulcan-Hart in May of 1967. From early 1971 until July 20, 1978, when the appellant was laid off, the appellant had problems with his back. The appellant contends that on May 9, 1978, Vulcan-Hart required him to work a 10 hour shift. This long work day resulted in more back problems--this time forcing him to miss five weeks of work. The appellant alleged in his complaint to the Commission that he was thereafter laid off because of his inability to work greater than a 40 hour week.

Vulcan-Hart's position is that on May 9, 1978, Vulcan-Hart's general foreman asked the appellant if he could work overtime. The appellant told the foreman that he was restricted to a 40 hour work week, but that he was willing to try to work longer. The appellant then missed five weeks of work, and when he did return, he worked only two hours, saying that he was physically unable to work.

The appellant was examined by a physician designated by Vulcan-Hart, who determined that the appellant could only perform "light, sedentary" work. Since no such work was then available, Vulcan-Hart represented that it placed the appellant on medical leave of absence.

From the date of the appellant's filing of his complaint in January of 1979, the facts are not in dispute. On February 26, 1979, the Commission requested information and documents from Vulcan-Hart; it complied. On March 14, 1979, the appellant was notified by letter that a fact finding conference would be held by the Commission on April 19, 1979. ⁴ The appellant was at the conference and was represented by counsel. Counsel for Vulcan-Hart was also present. Both parties presented the facts of their respective cases, and the conference concluded with an agreement that if Vulcan-Hart's physician certified that the appellant was capable of returning to work as a press brake operator, then the appellant could return to work. After two examinations, Vulcan-Hart's physician concluded that the appellant was unable to return to his old job.

On September 27, 1979, the Commission's investigatory staff issued their "written findings" concluding that there was no probable cause to believe that the appellant had been the victim of discrimination. Consequently, the appellant's complaint was administratively dismissed by the Commission.

The appellant next filed a motion with David L. Glenn, Executive Director of the Commission, requesting a reconsideration of this administrative dismissal. After a review of the record including additional documentation by the appellant, Glenn determined that the record did not support a reconsideration. As discussed earlier, the Circuit Court for Baltimore City ultimately affirmed the Commission's action. We likewise find no merit in the appellant's arguments, and shall affirm.

The appellant asserts that he was denied due process of law when he allegedly was "not afforded a sufficient evidentiary opportunity before the commission dismissed his complaint." The appellant's contention presents us with the opportunity to determine whether the procedure followed by the Commission as provided for in Md.Code (1957, 1979 Repl.Vol.), Article 49B comports with due process.

Preliminarily, we note that the due process clauses of Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment of the United States Constitution have the same meaning. The Court of Appeals has decided that "Supreme Court interpretations of the federal provision are authority for interpretation of Article 24." Department of Transportation v. Armacost, 299 Md. 392, 415-16, 474 A.2d 191 (1984); Pitsenberger v. Pitsenberger, 287 Md. 20, 27, 410 A.2d 1052 (1980), appeal dismissed, 449 U.S. 807, 101 S.Ct. 52, 66 L.Ed.2d 10 (1980). In order for the appellant to establish a violation of procedural due process, he must first show that state action has resulted in his being deprived of a property interest. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Armacost, 299 Md. at 416, 474 A.2d 191. It is clear in this case that state action was involved. The remedy of Art. 49B was created, regulated, and enforced by the State. See Pitsenberger, 287 Md. at 28, 410 A.2d 1052. Further, it is beyond serious contention that the appellant does have a property interest in his claim of employment discrimination. The Supreme Court has held that such a complaint is a species of property protected by the Fourteenth Amendment's Due Process Clause. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265, 273 (1982). In that case, the Court considered a challenge to a state law that barred employment discrimination on the basis of physical handicap unrelated to ability. The complainant, in order to obtain relief under the applicable statute, had to bring a charge of unlawful conduct before the Illinois Fair Employment Practices Commission within 180 days of the occurrence of the allegedly discriminatory act. The statute "then gave the Commission 120 days within which to convene a fact finding conference designed to obtain evidence, ascertain the positions of the parties, and explore the possibility of a negotiated settlement." Logan, 455 U.S. at 424, 102 S.Ct. at 1152, 71 L.Ed.2d at 270.

The Supreme Court held in Logan that a victim of alleged employment discrimination had a property right in his claim before the Illinois Commission and was therefore entitled to procedural due process. Because of bureaucratic error the Illinois Commission failed to convene a fact finding conference within the prescribed 120 days, and under the Illinois statute, the commission was divested of jurisdiction over the complaint. As the Court explained its holding in Logan, "This conclusion is hardly a novel one. The Court traditionally has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances." Logan, 455 U.S. at 429, 102 S.Ct. at 1154, 71 L.Ed.2d at 273. The Supreme Court has emphasized that the hallmark of property is an individual entitlement grounded in state law, which cannot be removed except "for cause." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12, 98 S.Ct. 1554, 1561, 56 L.Ed.2d 30, 40 (1978). Cases in which the Supreme Court has found a property right include: Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (horse trainer's license protected); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (disability benefits); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (high school education); and Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (welfare benefits).

Likewise, the appellant's right to avail himself of the adjudicatory procedures of the Commission is generated by the State. Justice Blackmun, writing for the Court in Logan, observed, "It would require a remarkable reading of ["property"] to conclude that a horse trainer's license is a protected property interest under the Fourteenth Amendment, while a state-created right to redress discrimination is not." Logan, 455...