A.C. v. Maryland Commission on Civil Rights

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. ⁵⁶⁴ 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 AC.’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 AC.’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.), § ll-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 AC.’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.” ⁵⁶⁵ 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 recon ⁵⁶⁶ sideration 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 [[Image here]] 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: ⁵⁶⁷ 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 ⁵⁶⁸ 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 [AC.’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 [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 , 960 A.2d 1228 , (2008), aff'd, 418 Md. 594 , 17 A.3d 676 (2011).

As we ⁵⁶⁹ 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 , 753 A.2d 501 (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 , 85 A.3d 185 (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.

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 ). ⁵⁷⁰ 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). 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 statutory limitations period under ⁵⁷¹ 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 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 ⁵⁷² 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 be a legislative grant of the right to seek judicial review.” Harvey v. Marshall, 389 Md. 248 , 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 , 957 A.2d 611 (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. ⁵⁷³ 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 , 459 A.2d 205 (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 , 909 A.2d 694 (2006) (quoting Baltimore Gas & Elec. Co., supra, 296 Md. at 56 , 459 A.2d 205 ). Specifically, whether an administrative decision by the Commission constitutes a final, appealable order depends, in part, on the subject matter of the case reviewed.

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 ⁵⁷⁴ 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 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