Maryland Commission on Human Relations v. Mayor of Baltimore

JAMES S. GETTY, Judge (Retired), Specially Assigned. The issue presented in this case is whether an employee, who becomes mentally handicapped during the course of her employment and thereby disabled from performing the essentials of the job for which she was hired, is, by virtue of Maryland Ann.Code Art. 49B, § 16, nevertheless entitled to continued employment in a position which does not require her to perform the essential tasks of the job for which she was originally hired. Article 49B, § 16(a)(1), provides that: (a) It shall be an unlawful employment practice for an employer: ¹⁶⁹ (1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, age, national origin, marital status, or physical or mental handicap unrelated in nature and extent so as to reasonably preclude the performance of the employment. Background Rose Thurman worked as a police officer in Baltimore City from June 12, 1979, until her termination on July 17, 1981.

Under the provisions of Section 16-18 of the Code of Public Local Laws for Baltimore City (1979 ed.), Baltimore City Police Officers who are determined to be disabled, may be involuntarily retired if they have not obtained five years service. On April 5, 1981, while off duty and in a state of depression, Mrs. Thurman called a fellow officer and expressed to him suicidal thoughts. The officer went to her house, retrieved her service revolver, and, on orders of his superiors, placed her on medical leave. The Chief Police Physician, Dr. Daniel Wilfson, referred Mrs. Thurman to Dr. Michael Potash for a psychiatric evaluation.

Dr. Potash examined Mrs. Thurman on April 10, 1981, and noted in his mental status examination that Mrs. Thurman exhibited slurred speech and an extreme emotional liability and that she was distraught. Dr. Potash also noted her drunken condition. Mrs. Thurman denied having a drinking problem, but admitted to drinking the night before. At the time of this examination, Mrs. Thurman was separated from her husband who had frequently beaten her.

She also had recently learned that her mother had cancer. Compounding this stressful situation was the fact that she was estranged from her father, that her brothers had personal difficulties, and that her children, four of whom were teenagers, were “acting up.” Based on his observation of Mrs. Thurman and his evaluation of her history, Dr. Potash concluded that ¹⁷⁰ she was likely to remain emotionally disturbed for a long period of time and that she would not be capable of performing full police duty in the foreseeable future. After Dr. Potash’s evaluation, Mrs. Thurman was referred to five police physicians, which is required under Sec. 16-18 of the Code of Public Local Laws for Baltimore City. The interviews with the five physicians were cursory, lasting for approximately ten minutes.

Thereafter, the physicians found Mrs. Thurman unfit to serve. To counter what Mrs. Thurman believed to be an incorrect evaluation, she visited the East Baltimore Community Corporation Medical Center on May 7, 1981. There, Dr. Robert F. Fenton, M.S.W., reported that she behaved appropriately and did not show any signs of depression. On May 8, 1981, Mrs. Thurman visited the Church Hospital Corporation where she was examined by Dr. Wilhelm C. Baermann.

He concluded that she had a normal physical status and was physically able to work. Dr. Ullal Laxman Mallya, a board certified psychiatrist, first examined Rose Thurman on May 18, 1981, at the Provident Community Mental Health Center. His diagnosis revealed that she suffered from a mild state of anxiety. This was defined as an anxiety disorder with symptoms such as impaired memory, backaches, restlessness, and sleeplessness.

Dr. Mallya next saw her on May 27, 1981, and found that, while she was slightly anxious, she was relaxed, composed, and in good condition. His subsequent psychological tests on June 3, 1981, revealed that she was asymptomatic. On Mrs. Thurman’s last visit to Dr. Mallya on August 11, 1981, he determined as a final diagnosis that she suffered from an adjustment disorder with features of anxiety. This was defined as a maladaptive reaction to an identifiable psychosocial stressor which occurs within a three month period from the onset of the stressor.

The four stressors that were identified were (1) her mother’s cancer, (2) difficulty with a brother, (3) problems with her children, and (4) domestic troubles with her husband. ¹⁷¹ Dr. Mallya communicated the improvements in Mrs. Thurman’s condition to the Department. She was, however, discharged by the Baltimore City Police Department as “not capable of performing active duty as a police officer due to being emotionally incapacitated (not in the line of duty).” Thereafter, Mrs. Thurman filed a complaint with the State of Maryland Commission on Human Relations alleging discriminatory termination of her employment. Commission Hearing The hearing examiner concluded that Mrs. Thurman established a prima facie case of handicap discrimination (based upon the mental handicap of an adjustment disorder, testified to by Dr. Mallya) by showing that she was both physically and mentally capable of performing the duties of a police officer. The examiner then concluded, citing B & O Railroad v. Bowen, 60 Md.App. 299 , 482 A.2d 921 (1984), that the burden then shifted to the appellee to demonstrate that Mrs. Thurman’s handicap “would reasonably preclude the performance of the employment.” Citing Dr. Potash’s long-term experience in working with police officers, the hearing examiner opined that Dr. Potash’s opinion was entitled to greater weight than Dr. Mallya’s.

Accordingly, he decided that the appellee “has met this burden” of establishing that Mrs. Thurman’s handicap would reasonably preclude the performance of the duties of a police officer. The case did not end at that stage, however, because the hearing examiner resolved what he termed the “final issue” by holding that the appellee did not provide Mrs. Thurman “a reasonable accommodation” by offering her a limited duty position answering telephones. The examiner considered this failure to offer alternative employment as a violation of Article 49B. The appellee herein appealed and the Commission Appeal Board affirmed the examiner’s decision. ¹⁷² Trial Court Proceeding The trial court reversed the decision of the Appeal Board citing the Board’s conclusion that at the time of her termination Mrs. Thurman suffered a mental/emotional illness that rendered her unfit to perform essential police duties.

The court held that the complainant must establish the mental abilities to perform the duties of the job sought and that the handicap was the sole basis of her rejection, quoting Mass Transit Administration v. Commission on Human Relations, 68 Md.App. 703 , 515 A.2d 781 (1986). Since the Board’s decision was not based upon substantial evidence, the trial court concluded that she was not an otherwise qualified person and there was no duty to accommodate her by providing alternative employment. Standard of Review The standard and scope of review of the Commission’s decision is set forth in the Maryland Administrative Procedure Act, Code (1984) § 10-215 of the State Government Article. Subsection (g)(3) provides that a reviewing court may reverse or modify the decision [of the agency] if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision of the agency: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the agency; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious.

In order to determine whether Ms. Thurman was incorrectly denied a right to accommodation, this Court must review the decisions of the Commission and its Appeal Board in the same way the circuit court has done. We ¹⁷³ consider whether there was substantial evidence before the administrative agency on the record as a whole to support its conclusions. State Election Bd. v. Billhimer, 314 Md. 46, 58 , 548 A.2d 819 (1988); Supervisor of Assessments of Montgomery County v. Asbury Methodist Home, Inc., 313 Md. 614, 625 , 547 A.2d 190 (1988). The reviewing court is not constrained to affirm the agency where its order is premised upon an erroneous conclusion of law.

We may not, however, substitute our judgment for the expertise of the agency. Bulluck v. Pelham Wood Apartments, 283 Md. 505 , 390 A.2d 1119 (1978). The Law Article 49B does not expressly impose upon employers an obligation of “reasonable accommodation” for those individuals under physical or mental handicap. The guidelines adopted by the Commission on Human Relations, however, do impose such an obligation.

See COMAR 14.03.02.-05(B)(1). The guidelines were modeled after federal regulations of the Department of Health and Human Services implementing the Federal Rehabilitation Act of 1973, 29 U.S.C. sec. 794 . Accordingly, we look to cases interpreting the federal statute in interpreting the Maryland Act. Mass Transit Administration v. Maryland Commission on Human Relations, 68 Md.App. 703 , 515 A.2d 781 (1986).

Section 504 of the Rehabilitation Act of 1973 prohibits a federally funded state program from discriminating against an otherwise qualified handicapped individual solely by reason of his or her handicap. The implementing regulations established by the Department of Health and Human Services define reasonable accommodation in the following terms: 84.12 Reasonable Accommodation. (a) A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would ¹⁷⁴ impose an undue