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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2138 SEPTEMBER TERM, 2007 ______________________________________ GLENN HAWKINS v. ROCKVILLE PRINTING & GRAPHICS, INC., ET AL. ______________________________________ Davis, Eyler, Deborah S., Kenney, James A., III (retired, specially assigned), JJ. ______________________________________

Opinion by Kenney, J. ______________________________________ Filed: November 24, 2009

Appellant, Glenn Hawkins, brought suit in the Circuit Court for Montgomery County against appellees, Rockville Printing & Graphics, Inc. ("RPG"), and Rockville Color, LLC ("RC"), for violating the Montgomery County Human Rights Act ("MCHRA") and Perceived Disability provision of the Montgomery County Code ("MCC"). Hawkins appeals the grant of summary judgment in favor of RPG and RC, presenting two questions for our review, which we have rephrased to conform to the argument presented in his brief: I. Did the trial court err in granting RC's motion for summary judgment on the issue of whether Hawkins was a qualified individual with a disability under the MCHRA since there was a disputed material fact of whether he was able to work?1 II. Did the trial court err in granting RC's motion for summary judgment on Hawkins' claim for discriminatory/retaliatory failure to hire when there was a disputed fact as to whether he sought to make an application for employment? For the reasons set forth below, we shall reverse the grant of summary judgment as

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Hawkins asked: Did the trial court legally err in granting [RPG]'s motion for summary judgment on the issue of whether [Hawkins] was a qualified individual with a disability under the [MCHRA] since there was a disputed fact [as to] whether Hawkins was abl[e] to work?

His substantive argument, however, addresses only his attempt to work for RC. Therefore, we will address Hawkins' status as a "qualified individual" as it relates to the grant of summary judgment in favor of RC. See Rule 8-504(a)(7) (An appellate brief must contain argument in support of the party's position.). We note that, because RPG terminated all of its employees when it went out of business, the circuit court's determination that Hawkins' termination by RPG was not solely based on a discriminatory purpose was supported by undisputed facts in the record.
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to Count IV of Hawkins' Amended Complaint on the claim of Discrimination/Retaliation for Failure to Hire against RC, and remand to the Circuit Court for Montgomery County for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Hawkins, employed by RPG as a pressman for approximately twenty years, underwent lower back surgery in August 2003. When he returned to work in March 2004, he was medically "restricted from operating heavy machinery." As a result, RPG placed him in a light duty position, which he claims, and RPG disputes, was a managerial position. Hawkins states that RPG required him to return to full duty as a pressman again beginning in early 2005 through late June 2005. By letter dated June 21, 2005, Hawkins' attorney advised RPG that "Hawkins has a severe medical disability in his lower back such that he is precluded from operating heavy machinery," and requested that RPG reasonably accommodate his disability. From September 2005 through July 2006, RPG states that it "provided [Hawkins] with part-time work, because [it] had only a limited amount of non-lifting duties that [Hawkins] was medically cleared to perform." On May 24, 2006, Hawkins filed a Complaint of Alleged Discrimination In Employment with the Montgomery County Office of Human Rights ("MCOHR"), alleging that RPG had discriminated against him by failing to accommodate his disability limitations. On August 16, 2006, Hawkins filed another Complaint of Alleged Discrimination In Employment with MCOHR against RPG, in which he stated:
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The retaliation increased dramatically after I filed a formal charge of discrimination with the Office of Human Rights. Since early July 2006 I have only been allowed to work two to three hours per week and some weeks no hours at all. I believe that I have been retaliated against and constructively discharged as a direct result of my original claim of disability discrimination and retaliation. RPG states that "August 22, 2006, was the last time [Hawkins] came to work for [it]." Hawkins states that he "continued to work with sporadic part-time hours" until August 31, 2006. Hawkins provided a note dated August 24, 2006, to RPG, in which his doctor recommended that he "remain out of work until he is seen by his physician on Monday, August 28th. At this time [the doctor] will re-evaluate Mr. Hawkins' ability to go back to work." Hawkins states that, on August 28, 2006, his doctor placed him "off work on a temporary basis mostly because of the psychological stress that [he] was suffering from [his] employer." He provided a second doctor's note, dated August 28, 2006, to RPG, that stated that he was seen for "multiple medical and psychological problems" and that he was "advised to remain off work for an indefinite period." Hawkins was "hospitalized for four days because of pancreatic problem and was released from the hospital [on] September 3, 2006." According to Hawkins, "his off-work status was temporary and he was instructed to return to work when he felt he was reasonably able to do so." He states that he was "able to work in or around early September, 2006."

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By letter dated August 30, 2006, RPG notified all of its employees that it was selling its assets. It stated, in pertinent part: All of the employees of [RPG] will be released from employment as of midnight on the date of closing of the sale. I expect the sale to close on Thursday August 31st. . . . . The new company, [RC], will be considering applications of employment from [RPG] employees, and will be making any hiring decisions in its own discretion. [RC] has asked us to make their employment applications available to [RPG] employees. If you have not already received an application, one can be obtained from Ken Kallon in Accounting. It is my understanding that anyone who is hired by [RC] will retain their current rate of pay, vacation allowance, start date and tenure with the new company. However, you should confirm all terms of employment with [RC]. All employee forms must be completely filled out and turned in, in order to be considered for employment at [RC]. Please make sure to meet with Bob Wapasnick [sic] prior to starting work on Friday September 1st, 2006. The sale did close on August 31, 2006, and RPG terminated all of its employees and went out of business. In his affidavit, filed in support of his opposition to summary judgment, Hawkins stated: I was informed shortly after [August 31, 2006] that [RPG] was selling its business to a new company called [RC] and that all employees of [RPG] were being terminated but would be automatically rehired by [RC]. In fact, I have been informed that all employees were handed a new application to fill out just before August 31, 2006 to become employees of [RC]. One of my friends, Frederico Rosales, asked for a job application for me because I was in the hospital at the time. Mr. Rosales told me that they refused to give him an application for employment for me to apply to [RC]. On or about September 5, 2006, I called my old manager,
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Rick Wirth who was then an employee of [RC] to ask about being rehired for [RC]. [RC] was operating its business and had purchased the business of [RPG] at the time I talked to him. He told me that "we are under new management and you are not allowed back here." He also said that Mr. Ken Kallon, the former human resources manager for [RPG], who took a similar position with [RC], would call me to give me further details. Mr. Kallon never called me so I called him on September 7, 2006. He was employed by [RC] at the time I called him and the new company was operating. I asked if I could apply for work just like all of the other employees who were being rehired. He said to me, "there is no need to apply Glen, you do not understand." I said thank you and hung up the phone. On October 16, 2006, Hawkins filed a Second Amended Charge of Discrimination with MCOHR, adding RC as a respondent but not otherwise altering his original two claims. He also filed a supporting Statement of Discrimination specifically against RC, which stated: I Glenn Hawkins believe that I have been discriminated against and retaliated against by [RC]. This company merged with my former employer, [RPG], recently. At the time of the merger, all employees were terminated by the old employer but told they could fill out an application for employment and would be re-employed by the new entity. However, I was singled out and told that I could not fill out a new application and should not bother re-applying by the Human Resources Dept. I believe that this is further evidence of discrimination and retaliation by both my old employer, [RPG], and my new employer. Peter Mitchell, assigned by MCOHR as the Investigator of Hawkins' claims, served the Amended Charges and Statement on RC's counsel on October 19, 2006. Thomas Daly, President of RPG, stated in his affidavit that, on or about January 12, 2007, MCOHR notified RPG that it had terminated its investigation of all of Hawkins' charges, and that on February 8, 2008, the Equal Employment Opportunity Commission
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notified RPG that it had adopted the findings of MCOHR and closed its investigation of those charges. Hawkins filed a Complaint in the Circuit Court for Montgomery County against RPG and RC on March 1, 2007, alleging that RPG and RC violated the MCHRA and the Perceived Disability provision of the MCC by denying him a reasonable accommodation, denying him full-time light duty employment, and eventually terminating him as a result of his disability. He also alleged that RPG and RC retaliated against him for seeking a reasonable accommodation for his disability and for filing several complaints with MCOHR by refusing to transfer him back to a managerial position, forcing him to work in a very limited part-time position, and eventually terminating him. He demanded a jury trial. RC filed a motion to dismiss for misjoinder or, in the alternative, a motion for summary judgment, on April 16, 2007.2 RC asserted that it had never employed Hawkins, had never terminated him, had never failed to accommodate him, and had never retaliated against him in any way. It also asserted that Hawkins had never filed a sworn charge against it. In response, Hawkins filed an Amended Complaint on May 18, 2007, designating the original three counts as against RPG, and adding a fourth count of Discrimination/Retaliation - Failure to Hire against RC. In this count, he asserted that he was "discriminated against because of his disability and retaliated against by [RC]'s failure to hire him." He stated that,

RC moved for misjoinder arguing that, as RC had never employed Hawkins, RC could not be liable in a suit for the alleged discriminatory termination of Hawkins employment by RPG, and was therefore wrongfully joined as a party to the suit. Hawkins did not allege the count of discriminatory failure to hire against RC in his first complaint.
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though all employees of RPG were allowed to apply to RC, he was "singled out and told that he would not be a [sic] allowed to fill out a new application and should not bother reapplying with [RC] and that his termination was final." He also stated that "[a]ll other previous employees of [RPG] were rehired by [RC] but [he] was not rehired, with no justification thereto, despite making inquiries." On May 18, 2007, Hawkins filed a response and a memorandum in support of his opposition to RC's motion to dismiss for misjoinder or, in the alternative, summary judgment, and requested a hearing. He asserts, in his opposition, that "[his] claim against [RC] for retaliation and discrimination is sufficient enough to stand on its own," and that "[t]here are many other material facts in dispute which will require exhaustive discovery to reconcile, as is allowed and contemplated under the Maryland Rules when a Motion for Summary Judgment is filed." RPG filed a motion to dismiss or, in the alternative, motion for summary judgment on counts I, II, and III of the amended complaint, and a memorandum in support of the motion, on June 6, 2007. RPG asserted that "layoffs are a legitimate, nondiscriminatory reason for termination" and that it "is undisputed that [RPG] laid off all its employees because it sold its assets and went out of business." Therefore, RPG argued, "[it] had a legitimate nondiscriminatory reason to lay off [Hawkins] . . ." RC filed a Motion to Dismiss For Failure To State A Claim Or In The Alternative Motion For Summary Judgment On Count IV Of The Amended Complaint, and a memorandum in support of its motion, on June 13, 2007. RC argued in its motion:
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[RPG] told all its employees that if they wanted to work for [RC] they needed to fill out an application and contact Bob Wepasnick by September 1, 2006. . . . . Four days before [RC] hired its workforce, [Hawkins'] doctor signed a note stating that [Hawkins] was medically unable to work in any capacity for an indefinite period of time. * * * As a matter of law, [Hawkins] was not covered by the disability discrimination laws because he was not medically qualified to work at the time of the hiring decision at issue. [RPG] laid off all its employees, including [Hawkins], because [RPG] went out of business. Therefore, as a matter of undisputed facts and law, all of [Hawkins'] claims of discriminatory and retaliatory termination are baseless. According to RC: To claim disability discrimination an employee must be an otherwise qualified individual who merely needs a reasonable accommodation to perform his job. Section 27-6 (v) of the Montgomery County Code states that a "qualified individual with a disability" means: An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position . . . . * * * Here, . . . [Hawkins] was medically prohibited from working when [RC] hired its workforce. Accordingly, [Hawkins] was not protected under Montgomery County's Human Rights Ordinance because he was not a "qualified" individual with a disability. Simply stated, the law does not require an employer to hire an applicant who is not medically qualified to work. . . . .

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Hawkins filed an opposition to RPG and RC's motions and requested a hearing. He asserted that "[RC's] main contention, that [he] was not a qualified individual under the [MCHRA], is simply factually incorrect." He stated that his off-work placement was a "temporary status;" that "Dr. Cooke . . . informed [him] that he could return to work when he felt medically able to do so;" and "that by September 5, 2006, he felt medically able to return to work and was able to perform the essential functions of a job within his medical restrictions of no lifting over 18 pounds."3 He stated that "[h]e did not need a form from Dr. Cooke clearing him to return to work because Dr. Cooke left that up to [him]." Hawkins asserted that "[he] clearly was a `qualified individual' under the [MCHRA] and entitled to protection from disability discrimination and retaliation . . . ." After a hearing on the motions on October 19, 2007, the circuit court granted summary judgment to both RPG and RC: In reviewing all of the affidavits and what's been submitted on both sides, it's undisputed that [RPG] ceased its operations on August 31st, that [RC] obtained those assets. There's no ownership interest in [RC] in [RPG]. It's a separate ownership entity. The employees were advised at [RPG] that the sale was occurring. They were advised by a certain date to apply with [RC]. [Hawkins] did not make application. Based upon what's been submitted, there's no obligation on [RC] to hire [Hawkins]. In addition, there is, [sic] it's undisputed that on August 28 , [RPG] received a note saying that [Hawkins] was advised
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Due to the Labor day holiday, Tuesday, September 5, 2006, was the next business day after Friday, September 1, 2006.
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to remain off work for an indefinite period of time. Based upon the affidavits that have been submitted, what's contained in the motions and the memoranda, I'm convinced that summary judgment is appropriate. Accordingly, I'm going to grant the motion for summary judgment as to [RPG], Counts 1, 2, and 3 of the amended complaint. As well as to [RC], I'll grant the motion for summary judgment as to [RC] as well. We shall include additional facts below as are necessary to our discussion of the issues. STANDARD OF REVIEW The Court of Appeals, in the case of Doe v. Montgomery County Bd. of Elections, 406 Md. 697, 711 (2008), explained: "In considering a trial court's grant of a motion for summary judgment, this Court reviews the record in the light most favorable to the nonmoving party." If the Court concludes that "no material facts are placed in genuine dispute, this Court must determine whether the Circuit Court correctly entered summary judgment as a matter of law." Id. (citing Maryland Rule 2-501(f); Bednar v. Provident Bank of Md., Inc., 402 Md. 532 (2007) (other citations omitted)). DISCUSSION I. We address first whether Hawkins was a qualified individual with a disability under the MCHRA. Hawkins argues that "there was a disputed fact [as to] whether [he] was abl[e] to work." In granting summary judgment, the court stated that "it's undisputed that on August
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28th, [RPG] received a note saying that [Hawkins] was advised to remain off work for an indefinite period of time." This statement constitutes an implicit finding that Hawkins was not a qualified individual under the MCHRA as of that date. To support a claim under the MCHRA, Hawkins must show that, notwithstanding his disability, he was otherwise qualified for employment at the time he sought employment from RC, with or without "reasonable accommodation." MCC

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