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American Red Cross v. Carol Epperly, No. 101, September Term, 1997.

[Administrative Law - Complaint to Montgomery County Commission on Human Relations of discrimination based on handicap. Held: Appeal dismissed for lack of final order by agency.]

/Circuit Court for Montgomery County Case Civil #152280

IN THE COURT OF APPEALS OF MARYLAND No. 101 September Term, 1997 _________________________________________

AMERICAN RED CROSS

v.

CAROL EPPERLY _________________________________________ Bell, C.J. Eldridge Rodowsky Chasanow Raker Wilner Cathell, JJ. _________________________________________ Opinion by Rodowsky, J. _________________________________________ Filed: September 16, 1998

This is an action for judicial review of a decision by the Montgomery County Commission on Human Relations (the Commission) applying that county's ordinance prohibiting discrimination in employment on the basis of handicap. The Commission concluded that the appellant, American Red Cross (ARC), had violated the ordinance in a number of respects, and it granted relief to the appellee, Carol Epperly (Epperly). On ARC's petition for review the Circuit Court for Montgomery County affirmed in part, and reversed in part, the Commission's action. Cross-appeals were filed to the Court of Special Appeals, but we granted certiorari on our own motion prior to consideration of the matter by the intermediate appellate court. The issues raised cover the spectrum from whether Epperly is a handicapped person under the ordinance, through disputes over reasonable accommodation and the substantiality of the evidence of discrimination, to challenges to the Commission's power to have decided this particular case. We cannot reach the merits at this time, however, because there is no final order of the Commission. Chapter 27 of the Montgomery County Code (1994) (the Ordinance) is entitled, "Human Relations and Civil Liberties."1 It creates the Commission, and it prohibits various forms of discrimination, including discrimination in employment. Section 27-19 provides, in relevant part, as follows: "(a) It shall be an unlawful employment practice to do any of the following acts because of the ... handicap ... of any individual or because of any reason that would not have been asserted but for the ... handicap ... of the individual: "(1) For an employer:

1

All statutory references are to the Montgomery County Code (1994).

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"a. To fail or refuse to hire or fail to accept the services of or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment." Epperly's employment by ARC began in October 1980 as a Secretary II. She contends that she is disabled by severe asthma but nevertheless qualified to perform the requirements of various positions at ARC. Over the years she received a number of promotions at ARC until, effective in April 1988, her position was terminated, an action that was not unlawful. Thereafter Epperly applied for, but was not hired to fill, certain vacancies. She accepted employment as a receptionist at ARC, but voluntarily quit in October 1988. Epperly complained to the Commission that ARC did not reasonably accommodate her handicap and that ARC, based on her handicap, discriminated against her in her efforts to be re-employed. There are at least four components to the Commission, namely, the Commission members themselves, Commission panels, hearing panels, and the office of the Executive Director. There are separate Commission panels for various areas of activity in which the Ordinance prohibits various kinds of discrimination, including the area of employment. The flow chart of a complaint of discrimination ordinarily begins with a filing with the Executive Director. If it is determined that the complaint is to proceed, it is heard by a hearing panel whose decision is reviewed by a Commission panel which, in turn, makes the final agency decision. Epperly's complaint was filed with the Commission in February 1989, alleging age and handicap discrimination. In September 1991 the Commission's Executive Director, after conducting an investigation, concluded that "there are no reasonable grounds to believe

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[ARC] has engaged in any unlawful discriminatory employment practices" under the Ordinance. Epperly requested the right to appear before the Commission's Employment Panel for a final determination whether her complaint ought to be dismissed. On June 18, 1992, the Employment Panel affirmed the Executive Director's "no reasonable grounds" determination with respect to the age discrimination claim, but directed that a de novo hearing before a hearing panel be conducted with respect to Epperly's claim of discrimination on the basis of physical handicap. An intermittent hearing on the merits, conducted by a hearing panel of the Commission's Employment Panel and comprising some eleven sessions, was convened on January 21, 1993, and concluded on April 13, 1993. Two years later, on April 10, 1995, the hearing panel issued its forty-three page "Decision and Order," finding in Epperly's favor and ordering various relief. ARC requested that the Commission's Employment Panel hear oral argument before issuing the Commission's final decision. That argument was held on September 27, 1995, before a three-member panel. On January 23, 1996, a "Decision and Order" was issued, signed by the "Chairperson for Oral Argument, Human Relations Commission Employment Panel" and stating that it was "[f]or the Employment Panel (unanimous)." The "Decision and Order" for the Employment Panel affirmed the hearing panel's determination. In the subject action for judicial review the Circuit Court for Montgomery County, by written opinion filed March 17, 1997, affirmed with two exceptions and remanded to the

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Commission solely to recalculate damages. The parties cross-appealed to the Court of Special Appeals, and we granted "bypass" certiorari. ARC makes two arguments challenging the power of the Commission to decide this case. If ARC is correct on either argument, it would be dispositive of the present appeal. In order for us to present these arguments, it is necessary first to review the Commission's structure and procedures more precisely than in the overview we have set forth above. The Commission proper is comprised of not less than nine nor more than fifteen members.

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