A.C. v. Maryland Commission on Civil Rights , 232 Md. App. 558 ( 2017 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 322
September Term, 2016
A.C.
v.
MARYLAND COMMISSION ON CIVIL
RIGHTS, et al.
Meredith,
Berger,
Kenney, James A., III
(Senior Judge, Specially Assigned),
JJ.
Opinion by Berger, J.
Filed: April 28, 2017
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
2
[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
3
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
4
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
1
In a letter dated February 22, 2016, A.C. sent a letter to the OAG asserting that,
“[p]ursuant to Maryland Rule 7-206, the [Commission] was
required to transmit the record from the agency’s
determination of No Probable Cause “within 60 days after the
agency receive[d] the first petition for judicial review.” (Md.
Rule 7-206(d)). The agency’s record is now overdue. Please
be kind enough to submit the agency’s record . . . .”
5
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 cause for
discrimination and retaliation is not subject to judicial review
by this [c]ourt. SG § 20-1005(d)(2).
Neither A.C. nor the OAG or the Commission requested a hearing on their motions
to dismiss filed in the circuit court. On April 5, 2016, the circuit court granted the OAG’s
motion to dismiss, granted the Commission’s “Motion to Dismiss Petition for Judicial
Review and Preclusion from Transmitting Investigative File,” and denied A.C.’s request
for leave to amend her complaint to include a request for a writ of mandamus. The court’s
decision was based, in part, on its finding that a “no probable cause” finding by the
Commission in this case was “not an appealable final order subject to judicial review in
6
[the circuit court],” and that A.C. “has, and has had, an avenue through which to seek legal
recourse.”
DISCUSSION
I. Standard of Review
Our review of the circuit court’s grant of the OAG’s and the Commission’s motion
to dismiss is de novo. Gasper v. Ruffin Hotel Corp. of Maryland, 183 Md. App. 211, 226,
(2008), aff’d, 418 Md. 594 (2011). As we stated in Gasper, “[i]n reviewing the underlying
grant of a motion to dismiss, we must assume the truth of the well-pleaded factual
allegations of the complaint, including the reasonable inferences that may be drawn from
those allegations.” Id. (quoting Adamson v. Corr. Med. Servs., 359 Md. 238, 246 (2000)).
Furthermore, issues of statutory interpretation are legal issues for which we review for legal
correctness. Falls Road Community Ass’n v. Baltimore Cnty., 437 Md. 115, 134 (2014).
II. Federal and State Framework
In Maryland, both state and federal agencies provide a remedy for individuals who
bring claims of race discrimination in employment. At the federal level, Title VII of the
Civil Rights Act of 1964 protects employees from discrimination in his or her
“compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. The EEOC
is the federal agency charged with enforcing Title VII and other anti-discrimination
statutes. See 42 U.S.C. § 2000e-4.
7
When a complaint is filed with the EEOC, the agency investigates the complaint
and determines whether there is reasonable cause to believe the allegations of
discrimination. 29 C.F.R. § 1601.21. If reasonable cause exists, the EEOC may decide to
pursue a claim on behalf of the aggrieved party. The EEOC, however, does not have the
authority to fully adjudicate claims of discrimination and impose sanctions on
employers -- a power that remains with the federal courts. 2 See 42 U.S.C. § 2000e-4;
Laber v. Harvey, 438 F.3d 404, 416 (4th Cir. 2006). If the EEOC does not find reasonable
cause, or in some situations upon request from the claimant prior to the conclusion of the
investigation, the EEOC issues a “Right to Sue” letter allowing the claimant to file a private
civil action in a U.S. District Court. Laber, 438 F.3d at 416 (citing 42 U.S.C. § 2000e-
5(f)(1); 29 C.F.R. § 1601.28).
As in the instant case, the EEOC works with state and local fair employment
practices agencies (“FEP”) who administer similar state anti-discrimination laws. See 42
U.S.C. § 2000e-8(b). The Maryland Civil Rights Act protects the same classes as those
covered by Title VII, including race, as well as additional classes. 3 See SG § 20-606(a).
2
Federal employees’ claims are treated differently; in those cases, the EEOC does
have the authority to adjudicate those claims and impose sanctions. See 42 U.S.C. § 2000e-
16(b).
3
Section 20-902(a) of the State Government Article provides:
In an employment discrimination case in which a unit, officer,
or employee of the State, a county, or a municipality is a
8
In Maryland, the Commission, a FEP agency, is authorized under SG § 20-207 to hold
investigatory hearings “[w]henever any problem of racial discrimination arises . . . . to
resolve the problem promptly by gathering all of the facts from each interested party and
mak[e] recommendations as necessary.” SG § 20-207(d)(1). If the Commission’s
investigation does not find probable cause that the alleged discriminatory act occurred, it
must issue its written findings and dismiss the complaint. SG § 20-1009. If the EEOC
subsequently reviews the complaint, the EEOC “may utilize the information gathered by”
the Commission. See 29 C.F.R. § 1601.15.
If the Commission finds no probable cause that the discriminatory act occurred, or
if the claimant wishes to bring her claim in state court prior to the conclusion of the
investigation, she may elect to file a civil action in the circuit court in the county where the
alleged unlawful act occurred. See SG § 20-1013. To bring a private action, the claimant
must have “initially filed a timely administrative . . . complaint;” “at least 180 days have
elapsed since the filing of the administrative . . . complaint;” and the claimant must file the
civil action in state court “within two years after the unlawful employment practice
occurred.” SG § 20-1013(a). Filing a civil action terminates any ongoing proceedings
before the Commission and shifts the authority to provide remedies available under SG §
20-1009(b) to the circuit court. See SG § 20-1013(c)-(d). In contrast to the two-year
respondent, the rules, procedures, powers, rights, and remedies
that apply are the same as those that apply in a discrimination
case in which a private person is the respondent.
9
statutory limitations period under state law, however, receipt of a “Right to Sue” letter from
the EEOC upon completion of its review provides the claimant ninety days to file a civil
claim in federal court, regardless of the date of the alleged unlawful act. See 42 U.S.C. §
2000e-5(f)(1). 4
We analyze A.C.’s arguments on appeal through the lens of this state and federal
framework. A.C.’s claim was reviewed by both the Commission under Maryland law and
the EEOC under Title VII. Ultimately, the EEOC upheld and adopted the Commission’s
findings and dismissed A.C.’s EEOC complaint. In accordance with the procedures
outlined supra, the EEOC included a “Notice of Rights” (i.e. “Right to Sue”) letter along
with the notice of the EEOC’s dismissal of her claim. At this point, because A.C. did not
file a civil action in state court within two years of the date of her termination in 2012, the
time for A.C. to file a private action in state court had expired. In contrast, upon receiving
the “Right to Sue” letter -- sent on or around December 15, 2015 -- A.C. was permitted to
file a civil action in the U.S. District Court for Maryland under federal law within ninety
days. Rather than filing in federal court, however, A.C. filed a petition for judicial review
4
The right to bring a private action after receiving notice of the “Right to Sue” is
provided by 42 U.S.C. § 2000e-5(f)(1) as follows:
If a charge filed with the [EEOC] is dismissed . . . , the [EEOC]
. . . shall so notify the person aggrieved and within ninety days
after the giving of such notice a civil action may be brought
against the respondent named in the charge [] by the person
claiming to be aggrieved . . . by the alleged unlawful
employment practice.
10
of the Commission’s decision in the circuit court in an attempt to appeal the Commission’s
finding of no probable cause and denial of reconsideration. As we discuss below, a petition
for judicial review of the Commission’s decision is not a proper avenue available to A.C.
for pursuing her claim.
III. The Circuit Court Did Not Err When It Dismissed A.C.’s Petition For Judicial
Review.
The issue before us is whether the circuit court erred -- as a matter of law -- in
granting the OAG’s and the Commission’s motion to dismiss. Stated differently, we
determine whether the circuit court was authorized to consider the petition for judicial
review of the Commission’s ultimate determination. We conclude that no statute, rule or
case law authorized the circuit court to entertain A.C.’s petition for judicial review. As a
result, the court was legally correct in dismissing A.C.’s petition for judicial review.
A statute must authorize judicial review for the circuit court to have authority over
a petition for judicial review from an administrative agency’s order or action. See Md.
Rule 7-201(a) (“The rules in this Chapter [Judicial Review of Administrative Agency
Decisions] govern actions for judicial review of . . . an order or action of an administrative
agency, where judicial review is authorized by statute . . . .”). As we observed in Oltman v.
Maryland State Bd. of Physicians,
Title 7, Chapter 200 of the Maryland Rules of Procedure
explicitly applies to “judicial review of . . . an order or action
of an administrative agency, where judicial review is
authorized by statute[.]” Md. Rule 7-201(a) (emphasis added).
This is consistent with the well-established principle that, “in
order for an administrative agency’s action properly to be
before . . . any court[ ] for judicial review, there generally must
11
be a legislative grant of the right to seek judicial review.”
Harvey v. Marshall, 389 Md. 243, 273, 884 A.2d 1171 (2005).
Thus, there is typically no right to judicial review of an
administrative decision unless that right is established by
statute.
182 Md. App. 65, 73 (2008) (emphasis and alterations in original); see also Md. Rule 7-
202(a) (“A person seeking judicial review under this chapter shall file a petition for judicial
review in a circuit court authorized to provide the review.”) (emphasis added). No
provision under Title 20 of the State Government Article of the Maryland Code confers
jurisdiction on the circuit court to hear petitions for judicial review of a denial of
reconsideration by the Commission in cases covered by Title VII.
More generally, to permit judicial review in the circuit court, the contested
administrative agency decision must be a final, appealable order. Maryland Comm’n on
Human Relations v. Baltimore Gas & Elec. Co., 296 Md. 46, 51–52 (1983) (“Generally, a
party can resort to a court only when there is a final order in the administrative
proceeding.”). Our well-established test for determining whether a judicial determination
is a final, appealable order is to inquire whether that determination “concludes the rights
of the parties or denies them means of further prosecuting or defending their rights and
interests in the subject matter of the proceedings.” Maryland-Nat’l Capital Park &
Planning Comm’n v. Anderson, 395 Md. 172, 188 (2006) (quoting Baltimore Gas & Elec.
Co., supra, 296 Md. at 56).
Specifically, whether an administrative decision by the Commission constitutes a
final, appealable order depends, in part, on the subject matter of the case reviewed.
12
Subsection 20-1005(d)(2) of the State Government Article provides that “[u]nless the
United States Equal Employment Opportunity Commission (EEOC) has jurisdiction over
the subject matter of the complaint, a denial of a request for reconsideration of a finding of
no probable cause by the Commission, is a final order appealable to the circuit court . . . .”
In other words, the Commission’s cases over which the EEOC has jurisdiction under
Title VII are excluded, specifically, from those that are “appealable to the circuit court.”
Id.
In the instant case, A.C.’s claim, which is based on claims of race discrimination
and retaliation, falls squarely within the subject matter over which the EEOC holds
jurisdiction. 5 See 42 U.S.C. 2000e. The Commission’s denial of A.C.’s motion for
reconsideration, therefore, did not constitute a final appealable order. Instead, A.C. had
the option -- which she elected to pursue -- to request a “substantial weight” review of her
claim by the EEOC. The EEOC reviewed the findings of the Commission and upheld the
Commission’s decision, finding “no probable cause to believe that the law had been
violated.” As we explained above, once A.C. was provided notice of her right to sue from
5
Notably, the Maryland Register published a “Proposed Action on Regulation” in
1977 that would have provided a complainant with the opportunity to appeal the
Commission’s denial of a request for reconsideration of a “no probable cause”
determination. See Maryland Register, Volume 4, Issue 21 (Oct. 7, 1977). Currently,
however, S.G. § 20-1005(d)(2) specifically excludes claims that fall under the jurisdiction
of the EEOC, including claims of race discrimination.
13
the EEOC, she was free to file a claim in the U.S. District Court for Maryland within ninety
days of the receipt of the notice. 6 A.C. chose not to pursue that course of redress.
Regardless, without a statutory grant of authority to the circuit court, her petition for
judicial review was improper and unauthorized.
IV. The Commission And The OAG Had Standing To File Motions To Dismiss
A.C.’s Petition For Judicial Review Of The Commission’s Finding Of No
Probable Cause And Denial Of Reconsideration.
A.C. challenges the Commission’s standing to file a “Motion to Dismiss for Judicial
Review and Preclusion from Transmitting Investigative File.” Similarly, A.C. challenges
the OAG’s standing to file its motion to dismiss. Her challenge to the standing of the
Commission is grounded, in part, on the Commission’s letter of December 16, 2015
notifying her of its receipt of her petition for judicial review in which the Commission
indicated that it did not intend to participate as a party. The Commission subsequently
6
The option to file in state court under Maryland’s anti-discrimination statute, SG
§ 20-606, expired two years after the discriminatory act occurred. § 20-1013(a). In this
case, the alleged discriminatory act occurred no later than A.C.’s termination in May of
2012, more than two years prior to the conclusion of the Commission’s investigation and
the EEOC’s review of her claim. On the other hand, a claimant is permitted to file in
federal court within 90 days of receiving the EEOC’s “Notice of Right to Sue” letter. See
42 U.S.C. § 2000e–5(f)(1) (“[W]ithin ninety days after the giving of such notice a civil
action may be brought against the respondent named in the charge [] by the person claiming
to be aggrieved.”).
14
filed a motion to dismiss on February 18, 2016. Thereafter, on March 1, 2016, the OAG
filed a motion to dismiss, adopting and incorporating the Commission’s arguments. 7
Maryland Rule 7-204 provides the following procedural requirements for a response
to a petition for judicial review:
(a) Who May File; Contents. Any person, including the
agency, who is entitled by law to be a party and who wishes to
participate as a party shall file a response to the petition. The
response shall state the intent to participate in the action for
judicial review. No other allegations are necessary.
[...]
(c) Time for Filing Response; Service. A response shall be
filed within 30 days after the date the agency mails notice of
the filing of the petition unless the court shortens or extends
the time. The response need be served only on the petitioner,
and shall be served in the manner prescribed by Rule 1-321.
Md. Rule 7-204.
Regarding the Commission’s standing, A.C. argues that “when the [Commission’s]
Motion to Dismiss was filed on February 18, 2016 -- two full months after it had already
relinquished the right to oppose the petition, the Circuit Court should have rejected the
submission and allowed A.C.’s case to move forward.” In support of her argument, A.C.
cites to our opinion in Egloff v. Cty. Council of Prince George’s Cty, 130 Md. App. 113
(2000).
7
The OAG had previously entered its appearance and filed a response on
January 12, 2016.
15
Egloff, however, involved a third-party petitioner in a land development case where
an objector to the County’s approval of a development plan sought to enter the case as a
third-party petitioner. 130 Md. App. at 120. Critically, in Egloff, a statute authorized
judicial review of the particular administrative decision and provided certain criteria for
who was permitted to petition for judicial review. See id. at 123. We determined that
Egloff did not have standing because she did not meet the criteria -- specifically because
she was not domiciled in the county in which the development was to occur. 8 Here,
however, the circuit court was not statutorily authorized to hear a petition for judicial
review, and both the Commission and the OAG sought to dismiss the case on that basis.
Secondly, neither the Commission nor the OAG is a third-party petitioner, where an
analysis of the party’s stake in the case is not as clear. Here, the Commission is the
administrative agency that rendered the challenged decision. As such, it was clearly
entitled to respond to the petition. See Oltman, 182 Md. App. at 79 (holding that an
administrative board that issued the challenged decision may “challenge a petitioner’s right
to obtain judicial review of its decision via a ‘preliminary motion.’”). Thus, under these
circumstances, the Commission is a proper respondent to A.C.’s action.
8
Egloff, supra, 130 Md. App. 113, was subsequently abrogated by Gosain v. Cty.
Council of Prince George’s Cty., 420 Md. 197 (2011). Specifically, the Court of Appeals
held that in order to have standing pursuant to the relevant statute, objectors to the
development plan were not required to be domiciled in the county. This abrogation of our
holding, however, does not impact our substantive analysis.
16
A.C.’s argument that the OAG did not have standing to challenge her petition for
judicial review rests on A.C.’s view that the OAG “does not have a stake in the application
for reconsideration process.” A.C. describes the process the Commission follows in
reviewing an application for reconsideration and points out that the OAG would not be able
to participate in the process of the Commission’s review of her application for
reconsideration. Therefore, A.C. argues that the OAG is not a stakeholder in the outcome
of her petition for judicial review. Had A.C. filed a proper action, the federal or state trial
court’s review of the case would not have focused on the Commission’s decision denying
A.C.’s request for reconsideration. As explained, supra, A.C. improperly petitioned for
judicial review of a decision that the circuit court does not have the statutory authority to
review. As a result, the OAG was certainly entitled to file a motion to dismiss, and to
include as a basis for its motion the circuit court’s lack of authority to entertain the case.
Finally, A.C. argues that both the Commission and the OAG’s responses were filed
too late. Pursuant to Md. Rule 7-204, a respondent must to file a response to a petition for
judicial review within thirty days of notice of the petition, unless the court extends that
time. The Commission did not file a response until more than two months after it received
notice of the petition, and the OAG filed its motion more than a week later. A.C. contends
that “had the situation been reversed and a private party like A.C. . . . did not comply with
the time limits for filing a response, . . . the private party would not have been allowed to
participate in the review.” A.C. overlooks the vastly different roles that a petitioner and a
respondent play in the course of bringing an action in the circuit court. Indeed, separate
17
statutes govern a petitioner’s and a respondent’s pleading requirements. In Dep’t of Pub.
Safety & Corr. Servs. v. Neal, a case in which the administrative agency petitioned for
judicial review and the respondent was a private person, we explained:
Unlike Rule 7–203 . . . , Rule 7–204 expressly grants the court
discretion to extend the time for filing a response to the
petition; and the language of Rule 7–204 does not preclude the
court from exercising that discretion to extend the filing
deadline retroactively, after it has passed.
160 Md. App. 496, 509 (2004).
Although the rule permits the trial court to reject a late response, it does not require
the court to do so. See Md. Rule 7-204(c); see also Toomey v. Gomeringer, 235 Md. 456,
459 (1964) (holding that Rule B9, the predecessor to Rule 7-204, is not “inflexible and
mandatory” where “it is not shown that the applicants were prejudiced by the delay”).
Accordingly, we hold that the circuit court did not err when it considered preliminary
motions to dismiss from both the OAG and the Commission.
V. The Commission Was Not Required To Transmit Its Confidential Investigative
Files To The Circuit Court.
A.C. contends that she was entitled to have the Commission’s investigatory file
transmitted to the circuit court. Section § 20-1101(a), State Government Article, provides
the following statutory framework regarding the Commission’s requirement to keep its
investigative files confidential:
18
Except as provided in paragraph (2) of this subsection,[9]
during an investigation of a complaint alleging a
discriminatory act, and until the matter reaches the stage of
public hearings:
(i) the activities of all members and employees of the
Commission in connection with the investigation shall
be conducted in confidence and without publicity . . . .
SG § 20-1101. Additionally, pursuant to COMAR 14.03.01.19, “request[s] for information
relating to investigative files before the charge has reached the public hearing stage will be
denied, except those made pursuant to [SG § 20-1101].” A “public hearing” is a “public
hearing before either the Office of Administrative Hearings or any federal or State court of
law.” COMAR 14.03.01.18B.
As we have explained, the circuit court did not have the statutory authority to
entertain A.C.’s petition for judicial review of the Commission’s denial of A.C.’s request
for reconsideration. The circuit court, therefore, properly dismissed the petition without a
hearing. The Commission was entitled to keep its investigation of A.C.’s complaint
confidential until the charge of discrimination and retaliation was properly filed and
reached the public hearing stage in either a federal or state court. The circuit court,
therefore, did not err when it dismissed the case without requiring the transmission of the
Commission’s investigative file.
9
Paragraph (2) provides that “information may be disclosed at any time if both the
complainant and the respondent agree to the disclosure in writing.” SG § 20-1101(a)(2).
19
VI. The Circuit Court Did Not Abuse Its Discretion In Denying A.C.’s Motion To
Amend Her Complaint To Include A Request For A Writ Of Mandamus.
Finally, A.C. appeals the circuit court’s decision to deny her motion to amend her
petition for judicial review to include a request for a writ of mandamus, in order to allow
her to compel the OAG to provide the procedures available to certain state employees under
SP § 11-106. 10 Our review of a trial court’s decision denying a motion to amend a pleading,
is as follows:
With respect to procedural issues, a trial court’s rulings are
given great deference. The determination to allow amendments
to pleadings or to grant leave to amend pleadings is within the
sound discretion of the trial judge. See Robertson v. Davis, 271
Md. 708, 710, 319 A.2d 816, 818 (1974) (discussing Rule 320,
the predecessor to Rule 2–341, and stating “whether to permit
an amendment rests within the sound discretion of the trial
judge”); Prudential Sec. v. E-Net, Inc., 140 Md.App. 194, 231–
32, 780 A.2d 359, 381 (2001); Residential Warranty Corp. v.
Bancroft Homes Greenspring Valley, Inc., 126 Md.App. 294,
317–18, 728 A.2d 783, 794–95, cert. denied, 355 Md. 613, 735
A.2d 1107 (1999). Only upon a clear abuse of discretion will a
trial court’s rulings in this arena be overturned.
10
The State Personnel Management System Reform Act of 1996 provides the
following protections for certain state employees:
(a) Before taking any disciplinary action related to employee
misconduct, an appointing authority shall: (1) investigate the
alleged misconduct; (2) meet with the employee; (3) consider
any mitigating circumstances; (4) determine the appropriate
disciplinary action, if any, to be imposed; and (5) give the
employee a written notice of the disciplinary action to be taken
and the employee’s appeal rights.
Md. Code Ann., State Pers. & Pens., § 11-106(a).
20
Schmerling v. Injured Workers’ Fund, 368 Md. 434, 443–44 (2002).
A writ of mandamus is an “extraordinary” remedy, and the power to issue this writ
is one that is “exercised . . . with caution, treading carefully so as to avoid interfering with
legislative prerogative and administrative discretion.” Wilson v. Simms, 380 Md. 206, 223
(2004) (citing Lamb v. Hammond, 308 Md. 286, 292 (1987)). Furthermore, “the party
seeking enforcement of that duty must have a clear entitlement to have the duty
performed.” Baltimore Cty. v. Baltimore Cty. Fraternal Order of Police Lodge No. 4, 439
Md. 547, 571 (2014).
The circuit court was well within its discretion to deny A.C. leave to amend to
include a request for a writ of mandamus to compel the pre-termination procedures
afforded to state employees under SP § 11-106. Specifically, A.C. had “no clear
entitlement” to the disciplinary procedures under SP § 11-106 or appeal procedures under
SP § 11-305 for a host of reasons, not the least of which is that she failed to properly appeal
her termination. Pursuant to SP § 11-108(b)(1), “[i]f an employee fails to appeal a decision
in accordance with this subtitle, the employee is considered to have accepted the decision.”
Additionally, A.C. was not entitled to the disciplinary procedures she sought to compel
under SP § 11-106, because she was a “specially appointed” at-will employee.
Under SP § 11-106, certain disciplinary procedures are available to state employees
in the skilled and professional services. See SP § 11-102 (providing that the subtitle applies
“to all employees in the State Personnel Management System within the Executive Branch
except temporary employees”). An employee who is specially appointed, however, is
21
employed “at-will” and “may be terminated for any reason that is not illegal or
unconstitutional, solely in the discretion of the appointing authority.” SP § 11-305(b).
Because of her “at-will” status, as well as the post-termination appeals procedures that
apply specifically to specially appointed employees, the Court of Appeals has held that
SP § 11-106 protections are afforded to specially appointed employees only for
disciplinary actions prior to or other than termination. See Forster v. Office of Pub.
Defender, 426 Md. 565, 570 (2012) (stating that SP § 11-113 procedures apply to at-will
employees of the State only where the action taken was prior to termination).
A.C. argues that because Title 11 excepts only temporary state employees from its
scope of coverage, the protections of SP § 11-106 should have applied to the circumstances
of her termination. See SP § 11-102. In Smack v. Dep’t Of Health And Mental Hygiene,
the Court of Appeals addressed the appearance of a conflict between SP § 11-102 and the
narrower appeals procedure in SP § 11-303 (a provision applicable to probationary
employees) that is similar to SP § 11-305: 11
To be sure, § 11–106 does apply to disciplinary actions against
probationary employees and, as we have seen, termination is a
disciplinary action. On the other hand, it is undisputed that §
11–303 does as well. This being the case, the statutes would
appear to be irreconcilably in conflict. Section 11–303 is more
narrowly focused, however, than § 11–106, referring only to
one form of disciplinary action, termination. Thus, they can be
reconciled by treating § 11–303, the more specific of the two,
11
See Forster, supra, 426 Md. at 590 (“Section 11–305, which governs termination
of at-will employees, including those in the executive service, is analogous to § 11–303,
governing termination of probationary employees.”).
22
as an exception to § 11–106, the more general. Of course, if
there were no § 11–303, § 11–106 undoubtedly would apply to
the case sub judice. Where, however, as here, there is a
provision that specifically, and without any doubt, addresses
the termination, as opposed to the discipline generally, of
probationary employees, that provision must control over a
provision that applies, but only generally, as § 11–106 does.
Smack v. Dep’t Of Health And Mental Hygiene, 378 Md. 298, 312-13 (2003).
Certainly, upon termination, a specially appointed employee, such as A.C. at the
time of her termination (who believes that her termination was illegal or unconstitutional),
may appeal the termination decision by following the procedures described under
SP § 11-113(b). See SP § 11-305 (providing the right to appeal pursuant to the procedures
outlined in § 11-113). Pursuant to SP § 11-113, however, the employee must file a written
appeal within fifteen days after the employee receives notice of the disciplinary action. SP
§ 11-113(b)(2)(i).
A.C. was notified of her termination on May 4, 2012. She did not file an appeal
with the OAG until June 21, 2012. The OAG denied A.C.’s appeal based on her failure to
submit the appeal within the 15-day appeals period. A.C. was, therefore, not entitled either
to an internal appeal of her termination under § 11-113 due to her delay in submitting an
appeal, nor was she afforded the post-termination procedures provided to various other
state employees under SP § 11-106.
Therefore, A.C. was not entitled to judicial review of the Commission’s decision.
Further, the decision to deny A.C.’s motion to amend her complaint was within the sound
discretion of the trial court. See Schmerling, supra, 368 Md. at 443–44. Assuming
23
arguendo that the court would have been inclined to grant her leave to amend for these
reasons, it would have only delayed the same result, as A.C. had no right to the internal
pre-termination procedures she sought. Under these circumstances, the trial court did not
abuse its discretion in denying A.C.’s motion to amend her petition for judicial review to
seek relief through a writ of mandamus.
In sum, A.C. was not entitled to file a petition for judicial review of the
Commission’s decision to deny reconsideration of her complaint, or upon receipt of the
EEOC’s “Right to Sue” letter. To pursue her race discrimination and retaliation claims in
the circuit court, A.C. was required to file a claim within two years of the alleged
discriminatory action -- in this case, A.C.’s termination. Further, the Commission was not
required to transmit the confidential investigative file of the agency to the circuit court
upon the filing of A.C.’s unauthorized petition for judicial review. Lastly, A.C. was not
entitled to a writ of mandamus compelling the OAG to afford her the internal pre-
termination procedures available under SP § 11-106, or the appeals procedures under
SP § 11-305, for her termination in 2012.
The circuit court, therefore, did not err in dismissing A.C.’s petition for judicial
review and denying her leave to amend. Accordingly, we affirm the circuit court’s order
(1) granting the OAG’s motion to dismiss; (2) granting the Commission’s “motion to
dismiss petition for judicial reviewed preclusion from transmitting its investigative file,”
24
and (3) denying A.C.’s request for leave to amend her complaint to include a request for a
writ of mandamus.
JUDGMENT OF THE CIRCUIT COURT FOR
BALTIMORE CITY AFFIRMED. COSTS TO BE
PAID BY APPELLANTS.
25