A.C. v. Md. Comm'n on Civil Rights

232 Md.App. 558

158 A.3d 1140

A.C.

v.MARYLAND COMMISSION ON CIVIL RIGHTS, et al.

No. 322, Sept. Term, 2016

Court of Special Appeals of Maryland.

Filed: April 28, 2017

Argued by: Alfreda D. Cooper, Baltimore, MD, for Appellant.

Argued by: Terrence J. Artis (Glendora C. Hughes, General Counsel, State of Maryland Commission on Civil Rights of Baltimore, MD) Matthew Fader (Julia D. Bernhardt, Brian E. Frosh, Attorney General of Baltimore, MD) on the briefs, for Appellee.

Panel: Meredith, Berger, James A. Kenney III (Senior Judge, Specially Assigned), JJ.

Berger, J.

This appeal arises from the circuit court's dismissal of appellant's ("A.C.") petition for judicial review of a decision by appellee, the Maryland Commission on Civil Rights ("the Commission"). In May, 2012, A.C. was terminated from her position as an assistant attorney general with appellee, the Office of the Attorney General ("the OAG"). Thereafter, A.C. filed a charge of race discrimination and retaliation against the OAG with the Commission. Almost three years later, the Commission issued a finding of no probable cause that a discriminatory act occurred. The Commission further denied A.C.'s subsequent request for reconsideration. A.C.'s complaint was then forwarded to the United States Equal Employment Opportunity Commission (EEOC), which ultimately upheld the Commission's findings. Pending the EEOC's review, A.C. filed a petition for judicial review of the Commission's decision to deny her request for reconsideration in the Circuit Court for Baltimore City. On April 5, 2016, the circuit court dismissed the petition for judicial review.

A.C. presents four issues for our review, which we have reworded as follows:

1. Whether the circuit court erred when it denied A.C.'s petition for judicial review of the Commission's decision to deny A.C.'s request for reconsideration, where no statute conferred authority on the circuit court to hear the petition.

2. Whether the circuit court erred when it permitted the Commission and the OAG to file motions to dismiss more than thirty days after each received notice of the petition for judicial review.

3. Whether the circuit court erred when it dismissed A.C.'s petition for judicial review without requiring the Commission to transmit its investigative files to the circuit court.

4. Whether the circuit court erred when it denied A.C.'s motion to amend her complaint to include a motion for a writ of mandamus to require the OAG to provide certain disciplinary procedures permitted to certain employees under Md. Code (1984, 2014 Repl. Vol.), § 11–106(a) of the State Personnel and Pensions Article ("SP").

BACKGROUND

In 2005, A.C. was appointed as an Assistant Attorney General in the Office of the Attorney General. On May 4, 2012, A.C. was terminated from her position. On October 29, 2012, A.C. filed an administrative complaint with the Commission alleging that her termination was based on race discrimination and retaliation.

On October 1, 2015, the Commission issued its written decision in which it found that A.C.'s performance "proved less than satisfactory." A.C. asserts that she was not provided with any information regarding the reason for her termination on the day she was terminated. The Commission agreed with A.C.'s assessment, but found that the absence of information was consistent with the OAG's procedure regarding the termination of an employee who serves as a "Special Appointment."

The Commission's written findings provide that A.C.'s termination was the "result of her documented consistent unwillingness to comply with her supervisor's requests," her unprofessional conduct (as documented in email exchanges between her and her supervisor), and other short-falls, such as her failure to recognize settlement opportunities. The Commission found that in addition to her unprofessional conduct, A.C. failed to put forward evidence of any discriminatory conduct towards her based on race. The Commission, therefore, determined that there was "[n]o Probable Cause to believe that the [OAG] discriminated against [A.C.] because of race under Title 20, Subtitle 6 of the State Government Article."

Along with the written findings of the Commission, A.C. received a letter, dated October 1, 2015, explaining her right to pursue the claim and that she had additional appeal rights with the EEOC.

Please note that this charge was dually filed with the [EEOC]. Accordingly, the Complainant has additional appeal rights with the EEOC. The Complainant is entitled to request EEOC to perform a "Substantial Weight Review" of the Commission's final finding. To obtain a Substantial Weight Review, the Complainant must make [his or her] request in writing, within 15 days of receipt of this letter. The request for review should contain the Complainant's name, charge number and any other additional information the Complainant believes would be helpful for the EEOC's review. Otherwise, the EEOC will generally adopt the Commission's findings.

Additionally, the Complainant has the right to request a Federal Notice of Right to Sue from the EEOC which would enable the Complainant to file a complaint in Federal District Court. The issuance of a Notice of Right to Sue will normally result in EEOC terminating all further processing.

On October 15, 2015, A.C. submitted a request for reconsideration with the Commission. On November 15, 2015, after a review of the investigative file, the Commission denied reconsideration pursuant to COMAR 14.03.01.08C. The letter included the following paragraph:

You have the right to pursue your complaint with the Equal Employment Opportunity Commission or in the United States District Court for Maryland upon obtaining a Notice of Right to Sue from the EEOC. You must notify the EEOC in writing within 15 days of this letter to request a review of the Maryland Commission on Civil Rights final decision ....

On or around the same day that A.C. submitted a request for reconsideration with the Commission, she also submitted a request for review to the EEOC. Thereafter, the

EEOC reviewed the findings and investigative file of the Commission and the additional information provided by A.C. The EEOC upheld the findings of the Commission. A letter dated December 15, 2015 to A.C. included the following information:

This review failed to reveal that the [Commission] was deficient in its investigation of your charges, and specifically, that it did not correctly apply the laws that EEOC enforces when examining the evidence and reaching its findings of facts. As a result, I am recommending that the previous findings of the [Commission], that there was no probable cause to believe that the law had been violated, be upheld.

In view of the above, your charge with EEOC is dismissed. Enclosed herein is a Notice of Rights which will enable you to file a lawsuit in Federal Court, should you so desire, within 90 days. We regret that we cannot be of further assistance to you in this matter.

A separate document, included with the letter, provided notice to A.C. of her right to bring a claim under federal law (i.e. Title VII of the Civil Rights Act of 1964) based on race discrimination in federal court and that, if brought in federal court, it must be brought within 90 days of receiving the document. Finally, additional information regarding A.C.'s right to pursue the case was attached to the notice, which included the following information and instructions:

At the time you filed your charge with the [Commission], you were notified in writing by the [Commission] that it would dual-file your charge for you with the [U.S. EEOC] in order to preserve your right to file a lawsuit in Federal District Court. The [Commission] ... notified you in writing of the reason for its closure of your charge .... EEOC has reviewed and adopted the [Commission's] findings, and has closed the dual-filed EEOC charge. ... This Dismissal & Notice of Rights authorizes you to file a lawsuit in Federal District Court within 90 days if you choose to do so .... EEOC does not encourage or discourage such legal action; [...]

If however, you do elect to file a lawsuit, you must do so with a Federal District Court within 90 days of the date you received the Dismissal & Notice of Rights , not the date it is dated. [ ...]

If you are going to file a lawsuit and need to obtain a copy of the information obtained during the [Commission's] processing of your charge, make your request promptly in writing to the [Commission] that investigated your charge (NOT EEOC). EEOC does not obtain the [Commission's] investigative case file.

(Emphasis Added.)

Rather than file a discrimination claim in either federal or state court, A.C. filed a petition for judicial review of the Commission's "no probable cause" finding on December 4, 2015.¹ On December 16, 2015, the Commission sent A.C. a letter confirming that it had received a copy of her petition for judicial review and that the Commission would not be participating as a party. Nevertheless, on February 18, 2016, the Commission filed a "Motion to Dismiss Petition for Judicial Review and Preclusion from Transmitting Investigative File." In its motion, the Commission argued that A.C. was not entitled to judicial review in circuit court, pursuant to Md. Code (1984, 2014 Repl. Vol.), § 20–1005(d) of the State Government Article ("SG"), and that "the Commission was barred from submitting its investigative file as the agency record because the petition is improper."

On March 1, 2016, the OAG also filed a motion to dismiss A.C.'s petition for judicial review, pursuant to Rule 7–204(b), and adopted and incorporated the arguments presented in the Commission's motion to dismiss. The OAG asserted, as both the OAG and the Commission continue to argue on appeal, that:

The [EEOC], which assumed jurisdiction over [A.C.'s] claims for discrimination and retaliation, has dismissed her claim of discrimination and issued her Notice of Right to Sue .... Thus, the Commission's finding of no probable

...