Com'n on Hum. Rel. v. Wash. Cty. Commun. Action Council, Inc.

BELL, Judge. The State of Maryland Commission on Human Relations appeals from the decision of a judge of the Circuit Court of Washington County which reversed the Commission’s decision that Washington County Community Action Council, Inc. (Council) had failed to promote Sylvia Bell, because of her race. The Commission makes the all too familiar allegation of error that the Circuit Court erred by substituting its assessment of the facts, and thus concluding that there was not adequate evidence in the record to support the holding of the agency charged with the initial responsibility of deciding the case, and in concluding that the agency’s decision was arbitrary and capricious. We agree; we reverse.

Sylvia Bell, a black woman, began her employment at the Child Development Center operated by the Council in January of 1968. In October 1977, the position of Director of the Child Development Center was advertised. She applied for, but ⁴⁵⁴ did not receive the position. Allegedly the promotion was withheld because of her lack of experience in writing grant proposals, as well as the committee’s information that she lacked the ability to work well with others.

Throughout its existence, the Center had employed three white persons as director, and no blacks. On November 21, 1977, Bell filed under oath a timely complaint with the Commission alleging that the Council had committed an act of employment discrimination against her because of her race. The Commission filed a Statement of Charges. A public hearing was held before a hearing examiner of the.

Commission. An Opinion and Provisional Order was issued by the hearing examiner on June 4, 1981, which concluded that there had been a violation of the provisions of Article 49B, Annotated Code of Maryland, by the Council in its failure to promote Bell to the position as Director of its Child Development Center because of her race. The hearing examiner ordered, among other things, that Bell be offered the next available position comparable in salary and status to the position to which she had sought promotion, with back pay amounting to $6,862.32, plus interest. The case was appealed by the Council to an appeal board of three Commissioners.

After oral argument the appeal board affirmed the findings of fact made by the hearing examiner and dismissed the appeal. The Council appealed that decision to the Circuit Court for Washington County which held “[t]hat the decision of the hearing examiner and appeal board was arbitrary and capricious and was unsupported by competent, material and substantial evidence in view of the entire record as submitted.” The Commission noted its appeal to this Court. The scope of the judicial review of a decision of an administrative agency is as set out in the Code of Maryland, Article 41, § 255(f): The Court may affirm the decision of the Agency or remand the case for further proceedings; or it may ⁴⁵⁵ reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or (6) Arbitrary or capricious. In applying the substantial evidence test a court may not substitute its judgment for that of the members of the administrative agency from which the appeal is taken.

Bulluck v. Pelham Wood Apts., 283 Md. 505, 512-13 , 390 A.2d 1119 (1978). A reviewing court examines the decision reached by the agency to determine whether reasoning minds could reasonably reach that conclusion by direct proof or by permissible inference from the facts and the record before the agency. If that conclusion could be reached, then it is based upon substantial evidence and the court has no power to reject that conclusion. Commissioner, Baltimore City Police Dept. v. Cason, 34 Md.App. 487 , 368 A.2d 1067 , cert. denied, 280 Md. 728 (1977).

The administrative agency’s decision must be reviewed in the light most favorable to the agency, since the decision is prima facie correct and carries with it the presumption of validity. It is the province of the agency to resolve conflicting evidence; it is the province of the agency to determine the inferences to be drawn where inconsistent inferences can be drawn. Bulluck, supra. The basic allocation of burdens and order of presentation of proof in cases of racial discrimination has been delineated by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 ⁴⁵⁶ L.Ed.2d 668 (1973).

Under McDonnell a three step pattern is established. Step 1. The claimant has the burden of proving a prima facie case of discrimination. To establish that prima facie case which is the first step, claimant must prove by a preponderance of the evidence that he or she (a) applied for an available position; (b) was qualified for that position; and (c) was rejected under circumstances which give rise to an inference of unlawful discrimination.

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981). Step 2. Once that prima facie case has been established the parties move to the next step. At this point, the burden shifts to' the respondent “to articulate some legitimate, nondiscriminatory reason” for the rejection.

McDonnell Douglas, supra, 411 U.S. at 802 , 93 S.Ct. at 1824 . Step 3. At this step, the burden shifts back to the claimant to prove by a preponderance of the evidence that the legitimate, nondiscriminatory reason was not the actual reason, and merely a pretext for discrimination. “[The claimant] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, supra 450 U.S. at 256 , 101 S.Ct. at 1095 . We turn now to the case at hand.

The trial court held that a prima facie case had been established and despite the argument to the contrary by appellee, we agree. Bell belongs to a racial minority. The hearing examiner found that [t]he Complainant was obviously found [by the Council] to be qualified for the position for which she had applied, having been ranked as number 3 among the applicants ⁴⁵⁷ that survived the screening process to the point of being interviewed by the appointing panel. Despite her qualifications Bell was rejected.

After her rejection the position remained open and the employer continued to “seek applications from persons of her qualifications” and soon thereafter hired someone. On review the court found and appellant and appellee agreed that the Council articulated a legitimate, nondiscriminatory reason for its decision. The court next correctly concluded, “[t]he pivotal issue is whether the decision on step three [pretextuality] is supported by substantial evidence.” The court then moved on to make sixteen specific findings of fact. It summarized, in four other paragraphs, the facts upon which the Commission relied in reaching its conclusion which interestingly had been 28 in number.

The Court then declared It is equally clear from reading the record, the Opinion and Provisional Order, and the Order of the Appeal Board, that the hearing examiner did not judge the credibility of the witnesses or weigh the evidence presented. It is apparent from the record that the four numbered paragraphs supporting the agency’s decision, as summarized by the court, are precisely the “competent, material, and substantial evidence in view of the entire record as submitted” required to show that the reason proffered by the Council for rejecting Bell was a pretext and, therefore, discriminatory. It is equally patent that in reaching its enumerated findings of fact, the court judged the credibility of the witnesses upon whose testimony the court’s findings of fact are based, without hearing that testimony or seeing the witnesses. What is the substantial evidence which supports the decision of the hearing examiner and the Commission?

The hearing examiner found among other things: (1) Sylvia Bell, a black female, was employed in 1968 by the Child Development Center of the Council. ⁴⁵⁸ In the fall of 1969, she applied for the position of