Baltimore & Ohio Railroad v. Bowen

MOYLAN, Judge. In this case, we are called upon to decide the proper allocation of the burden of proof in a handicap discrimination case. The appellant, Baltimore and Ohio Railroad Company (B & 0), appeals from the decision by the Circuit Court for Baltimore City affirming a ruling by the State Commission on Human Relations, dated June 9, 1981, that B & 0 had unlawfully discriminated against the appellee, Robert L. Bowen, by refusing to hire him as a railroad carman helper because of a physical handicap, in violation of Md.Ann. Code Art. 49B, § 16 (1957, 1979 Repl.Vol.). In September, 1977, B & 0 rejected Bowen for employment as a carman helper following a pre-employment physical examination performed by Dr. Gilbert Carouge, presently Chief Medical Officer for B & O. The examination, which included x-rays, revealed the presence of a bullet that was lodged in Bowen’s third lumbar vertebra.

Bowen had sustained the gunshot injury while serving in the United States Army, although he was off-duty and off-base at the time. During exploratory surgery, an Army surgeon had decided to leave the bullet where it was. The surgeon felt that the bullet posed no danger to Bowen. It was the opinion of Dr. Carouge, however, based on his personal knowledge of the duties required of carman helpers as well as upon the findings of an industry-wide study on the duties and physical demands of a carman and carman’s helper, referred to as “The Lawshe Study,” that such injury made ³⁰² Bowen a potential candidate for serious back injury if he attempted to undertake the strenuous tasks required in the employment position sought.

As a result of his rejection for employment with B & 0, Bowen filed a complaint with the State Commission on Human Relations alleging that B & 0 had unlawfully discriminated against him because of his physical handicap. Following an investigation, the Commission filed a statement of charges against B & 0, and the matter was scheduled for a public hearing before a hearing examiner on October 29, 1980. At the hearing, Bowen testified that he was a heavy equipment mechanic in the Army prior to the time he sustained the bullet wound in the stomach. After two weeks in the hospital and approximately 45 days of convalescing, he returned to that same job.

After he was discharged from the Army in September, 1972, he was awarded a permanent partial disability, although he did not solicit it. Since his discharge from the Army, he has held several jobs which have involved heavy lifting. At the time of the hearing, he was employed with the C & P Telephone Company as a heavy supplies driver. He testified that when he applied for employment with B & 0 in September, 1977, he indicated on the employment application that he received disability benefits from the Army.

Since his injury, Bowen has never been placed under any restrictions by a doctor regarding the performance of any job. He testified that he works out at a health spa three days a week, lifts weights, rides a 750 Honda motorcycle, and is involved with karate. At the most, he suffers some minor discomfort in his upper back when he first gets up in the morning. Bowen testified that he had reviewed the duties of a carman’s helper as set out in “The Lawshe Study” and could meet the physical demands of that job.

The hearing examiner admitted into evidence, over the objection of B & 0, the written medical report of Dr. Edward R. Cohen, an orthopedic surgeon, whom Bowen had ³⁰³ consulted after being rejected for employment by B & O. The report, dated September 21, 1977, contained Dr. Cohen’s opinion, based upon a physical examination and x-rays, that Bowen could be “gainfully employed in any desired job description without necessity for restriction.” At the hearing, B & 0 presented evidence as to the duties of a carman’s helper through Claire E. Smithers, who has had approximately 30 years’ experience as a railroader and who was then serving as manager of the Car Department, Michigan Division of the Chesapeake and Ohio Railway Company (like B & 0, part of the Chessie System). Mr. Smithers testified that, in July, 1977, he participated in the preparation of “The Lawshe Study.” He testified that the duties of a carman and carman’s helper are substantially the same, except that a carman’s helper assists the carman. He testified that carman helpers, as set forth in “The Lawshe Study,” are occasionally required to lift objects not in excess of 150 pounds and to carry objects of more than 150 pounds and that they are frequently required to push objects over 100 pounds. He concurred in “The Lawshe Study” job description that a carman “[pjerforms various job tasks under all weather conditions and all hours of day and night involving lifting of heavy tools and equipment, often in crouching or awkward positions which create back injury potentials.” Dr. Carouge, who has been with B & O since 1948, testified that there was a danger that the exertion and strenuous activity connected with the chores of a carman’s helper “might possibly dislodge” the bullet from the vertebra and thereby cause Bowen to suffer serious back problems.

The dislodgement of the bullet could result in spinal cord damage and paralysis of the legs. Dr. Carouge testified that there was already some spur formation around the area of the body of the vertebra where the bullet was lodged, indicating early arthritic change in that area. He testified further that as the bullet entered the body there “could [also] have been” some damage to the invertebral disc- -the soft tissue around the vertebral body — -which was ³⁰⁴ not evident from the x-ray. This would enhance the danger of Bowen’s developing a herniated disc, a frequent occurrence among railroad workers.

On June 9, 1981, the hearing examiner issued an Opinion and Provisional Order concluding that Bowen is a handicapped individual within the meaning of Art. 49B and that B & 0 had committed unlawful employment discrimination in refusing to hire him. The Commission, in a subsequent order entered on May 10, 1982, directed B & 0 to pay Bowen the sum of $25,210 as back pay, together with six percent annual interest. An Appeal Board affirmed the decision of the hearing examiner in an order dated March 14, 1983. B & 0 thereafter filed an appeal in the Circuit Court for Baltimore City.

On November 2, 1983, the circuit court issued a written memorandum and order affirming the Commission’s order. It is from the decision of the circuit court affirming the ruling of the Commission that B & 0 now appeals to this Court. On this appeal, B & 0 contends that the hearing examiner erroneously transferred the burden of proof from Bowen to B & 0, requiring it to justify its refusal to hire Bowen by showing a “reasonable probability” of future injury if Bowen engaged in a heavy laboring job. Thus, contends B & 0, it was placed in the position of having to disprove a factual proposition which Bowen should have been required to prove affirmatively — that “he had the ability to perform the duties of a carman helper for the present and for the foreseeable future.” B & 0 further contends that the circuit court erroneously deferred to the decision of the Human Relations Commission on this allocation of the burden of proof and that the circuit court erred in concluding that the Commission’s decision was supported by substantial evidence.

At the outset, we agree with B & 0 that the circuit court erred in deferring to the Commission as “the best judge of what standard of proof best suits their cases in the ³⁰⁵ absence of law to the contrary.” Legal issues are ultimately for the courts to determine. An administrative agency, to be sure, has specialized knowledge and expertise in its area. In questions of statutory interpretation, therefore, a court will defer to an agency’s interpretation or application of a statute soon after its passage. Such view taken of a statute by an administrative agency is “strong, persuasive influence in determining the judicial construction and should not be disregarded except for the strongest and most urgent reasons.” Baltimore Building & Constr.

Trades Council v. Barnes, 290 Md. 9, 14-15 , 427 A.2d 979 (1981). Likewise, a court will defer to the interpretation an agency gives to its own administrative rules and regulations. Maryland Commission on Human Relations v. Bethlehem Steel Corp., 295 Md. 586 , 457 A.2d 1146 (1983). Neither was the case here.

The question of the burden of proof in a handicap discrimination case is not one provided for by specific statute or regulation. As the hearing examiner pointed out, this was the first time the issue had arisen before the Commission. There was no reason, therefore, to defer to the Commission in the resolution of this purely legal issue. We hold, however, that the circuit court, in deciding this burden of proof question, reached the right result, albeit for the wrong reason.

The Maryland statute on unlawful discrimination, Art. 49B, § 16, does not expressly allocate the burden of proof and production of evidence in discrimination cases. B & 0 argues, however, that in cases involving handicap discrimination, as in other discrimination cases, the approach should be the one followed in the classic case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973), as more recently refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981): “First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defend ³⁰⁶ ant 'to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ ... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Id. 450 U.S. at 252-253 , 101 S.Ct. at 1093 (citations omitted).

McDonnell Douglas involved a discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Title VII covers discrimination because of race, sex, religion, and national origin. In these situations, discrimination is not admitted, and there is no direct evidence of discriminatory intent. Once a prima facie case of unlawful discrimination is established by the plaintiff, an intermediate evidentiary burden is, therefore, imposed on the defendant to provide an explanation for what would otherwise appear to be unlawful discriminatory conduct.

The plaintiff then has the burden of proving by a preponderance of the evidence that the legitimate nondiscriminatory reasons offered by the defendant were not its true reasons. The ultimate burden of persuasion as to discriminatory intent at all times remains on the plaintiff. A strict McDonnell Douglas approach to handicap discrimination cases, however, would not be appropriate. Unlike other discrimination cases, discriminatory intent is not usually at issue in a handicap discrimination case.

The employer usually admits that it did not hire the job applicant because of his handicap. Where that is the case, the three-step process of McDonnell Douglas, therefore, is not needed to establish discriminatory intent. The Supreme Court of New Jersey, in Andersen v. Exxon Co., 89 N.J. 483 , 446 A.2d 486 (1982), recognized that a strict McDonnell Douglas approach to handicap discrimination cases is “unnecessary”: “Unlike race, religion or sex discrimination cases, the defendant in a physical handicap discrimination case will ³⁰⁷ often admit that it denied the worker the job because of the physical handicap. Accordingly, in such cases it will not be necessary to go through all of the strict steps of the McDonnell Douglas formula to give rise to a presumption of unlawful discrimination.

The defendant admits the disparate treatment, but claims it was justified.” 446 A.2d at 494 . In this case, B & 0 admitted that it did not hire Bowen because of the bullet lodged in his vertebra. It contended, however, that its action was justified because of the potential for further injury