Wallace H. Campbell & Co. v. Maryland Comm'n on Human Relations

• Citation: 33 A.3d 1042,202 Md.App. 650
• Decision Date: 22 December 2011
• Docket Number: 2010.,Sept. Term,Nos. 291,1310,s. 291
• Parties: WALLACE H. CAMPBELL & COMPANY, INC. v. MARYLAND COMMISSION ON HUMAN RELATIONS.
• Court: Court of Special Appeals of Maryland

202 Md.App. 650

33 A.3d 1042

WALLACE H. CAMPBELL & COMPANY, INC.

v.MARYLAND COMMISSION ON HUMAN RELATIONS.

Nos. 291

1310

Sept. Term

2010.

Court of Special Appeals of Maryland.

Dec. 22, 2011.

Andrew Gendron & Michael J. DeVinne (Venable LLP, on the brief), Baltimore, MD, for Appellant.

Terrence J. Artis (Glendora C. Hughes, Patricia A. Wood, MD Commission of Human Relations, on the brief), Baltimore, MD, for Appellee.

Panel: MEREDITH, HOTTEN, LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

HOTTEN, J.

Austin Scarlett, who used a wheelchair and resided in one of Wallace H. Campbell & Company, Inc.'s (“the Campbell Company”) buildings, became frustrated with the Campbell Company's lack of responsiveness to his concerns and sought to mediate those issues with the Campbell Company. The mediation was unsuccessful. Based on events arising from the mediation, Scarlett filed a complaint with the Maryland Commission on Human Relations (“the Commission”), alleging that the Campbell Company had discriminated against Scarlett by holding the mediation at a wheelchair inaccessible location.

After an eventful history before an Administrative Law Judge and the Commission's appeal board, this matter was heard by the Circuit Court for Baltimore City on the Campbell Company's petition for judicial review. On April 6, 2010, the circuit court affirmed the Commission's final decision, which ordered the Campbell Company to pay $7,500 in damages and $5,000 as a civil penalty. On July 27, 2010, the circuit court granted the Commission's petition for judicial enforcement and entered judgment against the Campbell Company for $7,500 in damages and $5,000 as a civil penalty. The Campbell Company timely appealed both circuit court decisions, and we ordered that the appeals be consolidated. The Campbell Company presents the following questions for our review, which we quote:

1. Does 49B § 22(a)(9)¹ require that a reasonable accommodation be made where none has been requested?

2. Was the Campbell Company's participation—as one of the two disputants—a “practice” or “service” within the ambit of 49B § 22(a)(9)?

For the reasons discussed below, we conclude that Md.Code (1957, 2003 Repl.Vol.), Article 49B § 22(a)(9) requires a request before there can be a refusal to provide a reasonable accommodation, and, therefore, we do not reach the Campbell Company's second question.

FACTUAL AND LEGAL PROCEEDINGS

Austin Scarlett lived in Greenhill Housing, a federally subsidized apartment complex in Baltimore City. He suffered from several maladies, including hypertension, depression, morbid obesity, and diabetes, the last of which necessitated the amputation of his left leg above the knee. As a result, Scarlett used a motorized wheelchair for mobility, and the facilities at Greenhill Housing were fully accessible to him.²

The Campbell Company managed Greenhill Housing, in addition to approximately 110 other apartment and condominium complexes. R. Bruce Campbell was the president, chair, and chief executive officer of the Campbell Company. Frank Stromyer was a vice president of the Campbell Company and local site manager of Greenhill Housing.

Scarlett had several conflicts with his neighbors in Greenhill Housing, including an 80–year–old woman who lived directly above his apartment. Scarlett complained that the woman's doors squeaked loudly, yet nothing was done to address the issue. Eventually, the issues with the woman upstairs escalated, and she refused to address the squeaky doors or allow Greenhill Housing into her apartment to repair them. She even resorted to slamming the doors in her apartment at night, knowing that it would disturb Scarlett. Scarlett believed he was being discriminated against because he was in a wheelchair.

Scarlett met with Stromyer on at least three occasions at Greenhill Housing to discuss Scarlett's complaints. Stromyer met with the woman upstairs and sent her several letters, but the issues remained unresolved. Scarlett then contacted the Baltimore City Community Relations Commission (“BCCRC”) to mediate and resolve the dispute between Scarlett and Greenhill Housing. BCCRC referred Scarlett's case to Wanda M. Belle, who was a graduate student in negotiation and conflict management at the University of Baltimore and was interning at BCCRC as a volunteer mediator. Scarlett advised Belle that he preferred to conduct the mediation at Greenhill Housing because it was convenient for him. Belle sent a letter to Campbell, inviting him to mediate Scarlett's complaints through BCCRC. Belle sent the letter to the Campbell Company's office on Meridene Road, which was fully handicapped accessible. The Campbell Company advised that Stromyer, but not Campbell, would mediate with Scarlett. Scarlett only wanted to mediate with Campbell.

Campbell later agreed to attend the mediation if it were held at the Campbell Company's new office at 6212 York Road (“the Campbell Building”) because the paperwork concerning Scarlett's complaints was there and it was a more neutral location than Greenhill Housing. Belle informed Scarlett that Campbell agreed to mediate Scarlett's noise and discrimination complaints, and a meeting was scheduled for 5:30 p.m. on January 23, 2003 at the Campbell Building. At no time during Belle's communications with Campbell did she ascertain whether Campbell was aware that Scarlett used a wheelchair or that he wanted the mediation to take place at a handicapped accessible location.

Several months before the mediation, Scarlett was among twenty-five to thirty Greenhill Housing tenants who attended a meeting held by Campbell at Greenhill Housing. Scarlett asked Campbell a question from several feet away, and Campbell responded to what he characterized to be a “good question.” In the month before the scheduled mediation, Scarlett sent Campbell between thirty and fifty e-mails, most of which were copies of e-mails Scarlett previously sent to Stromyer. Campbell received the e-mails and relayed them to Stromyer. Scarlett had never been to the Campbell Building before the mediation, but based on his communications with Belle and Stromyer, he assumed that the building was wheelchair accessible.

The Campbell Company moved into the Campbell Building about a month and a half before the scheduled mediation. The building had one wheelchair accessible restroom, but not a wheelchair accessible entrance. A few days before the mediation, Stromyer advised Campbell that Scarlett used a wheelchair, and Campbell decided that it was better to proceed with the mediation at the Campbell Building rather than postpone it. Campbell thought that he, his son, and Stromyer would be able to help Scarlett into and out of the building.

Scarlett arrived at the Campbell Building around 5:30 p.m. on January 23, 2003 by Maryland Transit Administration Mobility van. The driver advised that the building was not wheelchair accessible and offered to take Scarlett home after making a stop in nearby Towson. Scarlett had the driver drop him off and approached the steps to the building in his wheelchair. Campbell, his son, and Stromyer hurried out of the building to assist Scarlett enter the building through the rear entrance, which had a three-inch step and a six-inch step. Scarlett stood up, not asking for assistance, but when Campbell, his son, and Stromyer offered help, Scarlett did not object and hopped up the two steps to the entrance. Scarlett entered the building and stood against the wall with his arms outstretched to keep his balance. Campbell stood nearby. Campbell's son and Stromyer carried the wheelchair up the steps, and Scarlett got back into it. At the time, Scarlett weighed 335 pounds, and the motorized wheelchair weighed at least 100 pounds.

Scarlett, Stromyer, Campbell, Belle, and the co-mediator went to the meeting room and participated in the mediation. The meeting lasted about two hours, but no agreement was reached. After the meeting, Scarlett asked to use the restroom. Stromyer led Scarlett to the nearest restroom, but it was not wheelchair accessible. Scarlett's wheelchair could not fit through the door, so he got out of his wheelchair and hopped into the restroom. Scarlett used the restroom while Stromyer held the door open. Stromyer was unaware of the existence of a wheelchair accessible restroom in the Campbell Building, and Scarlett did not ask whether there was a wheelchair accessible restroom in the building.

After using the restroom, Scarlett maneuvered his wheelchair to the exit, stood up, and was assisted by Campbell and Stromyer so they could bring the wheelchair down the steps. Scarlett hopped down the steps and held on to a car in the parking lot until Stromyer and Campbell brought the wheelchair to him. Scarlett did not complain about the means of entering and exiting the building, nor did he request special accommodations.

Scarlett continued to express his concerns to the Campbell Company regarding noise and harassment at Greenhill Housing. Scarlett communicated with representatives from the United States Department of Housing and Urban Development (“HUD”) and the Commission regarding his complaints with Greenhill Housing and the Campbell Company. On April 11, 2003, Scarlett filed a complaint with the Commission, alleging that the Campbell Company, Campbell, and Stromyer had discriminated against him and required him to mediate at a wheelchair inaccessible location.

Gregory Logan investigated the matter for the Commission. He visited the Campbell Building on September 30, 2003, at which time the entire building, including the entrances and the restrooms, was now wheelchair accessible. The Campbell Company apparently modified the Campbell Building following the mediation. Campbell advised Logan that it was Belle's idea to hold the mediation at the Campbell Building. Logan prepared a Written Finding of Probable Cause, concluding that the Campbell Company had discriminated against Scarlett on the basis...