Maryland National Capital Park & Planning Commission v. Crawford

ALPERT, Judge. The principal issue presented in this case is whether an employer engages in unlawful employment practices 1 proscribed by state and federal civil rights laws by failing to ²⁸¹ comply with the strictures of its own affirmative action plan. This case also requires our consideration of whether exhaustion of State administrative and statutory remedies is a prerequisite prior to bringing an action under 42 U.S.C. § 1983 , a Federal statute permitting civil actions for alleged deprivations of constitutional or statutory rights. 2 FACTS The following facts may be gleaned from the pleadings and exhibits filed by both parties in the action below. Commencing in November of 1980, Elsie Crawford, appellee, a white female, was employed by the Maryland-National Capital Park and Planning Commission 3 (the Commission) as a Secretary III.

In this capacity Crawford, among other duties, supervised four other Commission employees and was responsible for editing and correcting the work of 29 professionals and four clerical/secretarial employees. Although her performance had been rated Very Good (less than Exceptional but superior to Good), Crawford desired a lateral transfer to a position with less supervisory duties. Such a position became available on August 6, 1982, when the Commission announced recruitment for a Career Merit System Position Administrative Typist III, Grade 10, in the Prince George’s County Department of Parks & Recreation ²⁸² History Division. Crawford received a memorandum from a Commission Personnel Technician alerting her to this announcement and encouraging her to apply for this position.

Duly interested, Crawford applied. On September 3, 1982, the Employee Relations and Development Office forwarded 34 applications to Marye Wells, Associate Director of Parks & Recreation, appellant, stating that those 34 applicants were eligible for consideration for the typist position. The list was winnowed to five candidates; Crawford was one of these five candidates. On October 29, 1982, a panel consisting of John M. Walton, Jr., Coordinator of the Commission’s History Division, Frances Hagye, Secretary to the Director of Parks & Recreation, and Bianca Floyd, Manager of the Prince George’s County Black History Project, interviewed four candidates. 4 Crawford was unanimously selected to be the most fully qualified for the position and was listed by the panel as their first choice.

Ranked second was Nadine Callahan, a minority (black) applicant. Sometime within the following week Walton contacted Wells. Walton explained that Hagye had informed him that the subject position was in a deficient class (job category) which had not met the established goals of a Conciliation Agreement entered into by the Commission with the Equal Employment Opportunity Commission (EEOC). Hagye had further explained to him that Commission Executive Director Thomas H. Countee Jr., appellant, had recently granted a “concurrence” or exception to the EEOC agreement in this employment category and that the next position should be filled by a minority. 5 Walton queried wheth ²⁸³ er this information meant he was compelled to hire a minority candidate.

Wells responded that the EEOC agreement indicated that in order for a non-minority candidate to receive the position, that candidate must be clearly superior to the minority candidate. Wells further stated that the final decision for hiring rested with Countee as the Commission’s Executive Director. When asked for his recommendation, Walton indicated that he believed that Crawford, the non-minority candidate, should be offered the position. Wells instructed him to submit a memorandum of the panel’s findings.

In the meantime, she intended to investigate further the requirements of the EEOC agreement. On October 29, 1982, the panel, through a detailed memorandum authored by John Walton, forwarded its recommendation to Wells. This memorandum provided six reasons why the panel believed that Crawford was “clearly more qualified” than the second-ranked Callahan. 6 Upon a review of this memorandum, Wells failed to discern a clear explanation for the panel’s recommendation of Crawford over Callahan. According to Wells, her further questioning of Walton elicited that the only specific difference between the candidates was that Crawford had more work experience and had worked with the Commission.

Wells informed Walton that work with the Commission was not an adequate reason for requesting an exception (“concurrence”) to the EEOC conciliation agreement. Wells next spoke with Hagye. Hagye also indicated that Crawford’s edge was due to her experience with the Commission. When questioned by Wells as to Callahan’s ability to handle the ²⁸⁴ position, Hagye assured her that Callahan was a good candidate.

Wells told Hagye she would continue her review of the applicants and forward her recommendation to the Commission’s Director of Parks and Recreation, Hugh B. Robey, appellant, for his approval. Wells recontacted Walton and informed him she would rewrite his memorandum and forward it to Robey. On November 2, 1982, Wells submitted a memorandum recommending that Callahan be hired for the Administrative Typist III position. Wells identified the vacancy as a deficient class (job category) under the EEOC agreement and Callahan as a minority applicant.

Robey approved the recommendation and forwarded it to the Employee Relations and Development Office for processing. At trial, Crawford testified that she was informed she had been denied the lateral transfer in mid-November. She called Walton to determine why she did not receive the job. Walton explained “it was determined that the last position went to a non-minority on the stipulation that the next two must go to minorities.

The position [Crawford] had applied for was the next one.” Walton also stated that “[Crawford] has been rejected based upon race because the job had to go to a minority.” PROCEEDINGS December 15, 1982 Crawford filed an administrative grievance with the Commission and, pursuant to Commission procedures, requested that the matter be submitted to Director of Parks & Recreation Robey and Executive Director Countee for their findings and recommendations. January 11, 1983 In a “Grievance Response Form” addressed to Commission Executive Director Countee, Director of Parks & Recreation Robey stated that he had communicated with the interview panel and learned that Crawford was the panel’s first choice. He pointed out, however, that the Commission's conciliation agreement with the EEOC mandated the hiring of minorities in "effected classes.” As the subject position fell within an "effected class,” Robey concurred with Wells’ recommendation to hire Callahan over Crawford. ²⁸⁵ January 17, 1983 Crawford noted an appeal to Executive Director Thomas H. Countee Jr. February 10, 1983 Crawford filed a declaration in the Circuit Court for Prince George’s County alleging the action of the Commission, Countee, Wells and Robey amounted to racial discrimination in violation of her civil rights as guaranteed by 42 U.S.C. § 1983 , the United States Constitution, and the Maryland Constitution. Additionally, Crawford alleged that the Commission, Countee and Wells had conspired to prevent Crawford from appealing the action because of her race.

Crawford sought monetary damages and a lateral transfer to the position of Administrative Typist III. February 14, 1983 Commission Executive Director Countee rendered his opinion denying Crawford’s request for transfer. Countee reiterated the facts as previously explained and opined that the “investigation of this grievance revealed no misapplication or misinterpretation of Commission rules, regulations or policies or any arbitrary or capricious action taken against Ms. Crawford.” February 17, 1983 Pursuant to the Commission’s Merit System Rules and Regulations, Crawford appealed Countee’s decision to the Merit Service Board of the Commission. March 2, 1983 Appellants filed a demurrer to Crawford’s declaration in the Circuit Court for Prince George’s County contending that the action was premature in that administrative grievance procedures were pending.

March 7, 1983 A hearing was held on appellants’ demurrer before Circuit Court Judge Perry G. Bowen Jr. April 8, 1983 Judge Bowen overruled appellants’ demurrer and ordered that the case be set in for trial forthwith. April 15, 1983 The Merit System Board affirmed Countee’s findings, discerning “no misapplication or misinterpretation of Commission rules, regulations or policies in non-selecting [Crawford] for the vacancy in question because of her race.” ²⁸⁶ A trial on the merits was conducted on June 1 and 2, 1983, before Judge Bowen. In addition to receiving evidence as to the aforementioned facts, Judge Bowen heard the following testimony from Frances Hagye. Regarding Marye Wells’ rewriting of the interview panel’s hiring recommendation memorandum, Ms. Hagye related that she had never heard of such a practice in her sixteen and a-half years with the Commission.

The following colloquy transpired later in Ms. Hagye’s testimony: Q [By appellee’s counsel:] Do you know any basis, other than the color of Mrs. Crawford’s skin, as to why she wasn’t hired? A Well, under the EEOC agreement, and it was a deficient class, I do not know of any other reason. No. Q The only reason is the color of her skin, isn’t that correct? A Under the EEOC agreement, I would have to — I suppose that would be the reason, but we had a deficient class here, too, but— Q Yes, ma’am.

But anybody that came in that had the color of her skin couldn’t have the job, isn’t that correct? A Is that in my bailiwick? I just — it is a deficient class, so I was under the impression that a class had to be filled by a minority. Q Yes, ma’am.

But that means on your understanding, in response to my colleague’s questions, no matter how well qualified this woman is, maybe she is the world’s greatest legal stenographer, but with the color of her skin, she couldn’t have been hired for this job, could she? ²⁸⁷ A To the best of my knowledge, I suppose not. At the conclusion of the trial, Judge Bowen found that: (a) there was no evidence in the case that the [appellants] intended to violate [Crawford’s] rights or deliberately conspired or planned or had any program whereby they were depriving anyone of what was supposed to be due them under law. (b) the only reason why [Crawford] was not granted a transfer to which she was entitled under the rules and regulations and for which she was clearly the best qualified applicant, was that she was white. (c) there was no basis for award of punitive damages.

(d) [Crawford] was entitled to $500.00 as award for compensatory damages. (e) [Crawford] was entitled to injunctive relief directing her transfer to the position of Administrative Typist III. (f) [Crawford] may be entitled to counsel fees and was granted 30 days to file a petition for award of counsel fees. June 15, 1983 Appellants noted an appeal to this Court.

June 22, 1983 A hearing was held on Crawford’s Petition for Counsel Fees. Crawford’s counsel was awarded $24,971.10. THE ISSUES Appellants ask us to consider: I. Whether the trial court was in error in not sustaining the Appellants’ Demurrer to the Declaration ²⁸⁸ based on Plaintiffs failure to exhaust administrative remedies prior to filing the action?

II

Whether the employment decisions of the Appellants, taken to implement the Affirmative Action provisions of a Conciliation Agreement with U.S. E.E.O.C., violated a nonminority applicant’s Constitutional right to equal protection of law?

III

Whether the trial court having found that the Appellants’ had no intent to violate the Appellee’s Constitutional or legal rights, erred in granting the injunctive relief and damages?

IV

Whether the trial court erred in exercising jurisdiction to adjudicate the Petition for Award of Counsel Fee after the notice of appeal was filed and the appeal was perfected? Additionally, the State has filed an amicus curiae brief requesting us to hold that a Maryland court is not obliged to entertain an action under 42 U.S.C. § 1983 when the plaintiff has not exhausted administrative and statutory remedies. In their reply brief, appellants have adopted the arguments raised in the State’s amicus curiae brief. We consider the State’s argument to be an offshoot of Issue I raised by appellants.

Accordingly, we shall address the points raised by the State in Part I of this opinion. I. Failure to Exhaust Administrative and Statutory Remedies As detailed in our procedural chronology, Crawford filed her civil action in the Circuit Court for Prince George’s County on February 10, 1983. At that time her appeal to Executive Director Countee was still pending. After Countee denied Crawford’s request for transfer, Crawford proceeded to file an appeal to the Merit System Board on February 17, 1983.

The Merit System Board’s decision was not filed until April 15, 1983. ²⁸⁹ Appellants assert that Judge Bowen should have sustained their demurrer at the March 7, 1983 hearing. They reason that at the time her civil suit was filed, Crawford had not exhausted her administrative remedies. The State, in its amicus curiae brief, expresses its concern over the propriety of Maryland courts adjudicating claims based on a Federal statute prior to the exhaustion of State administrative remedies. The authority to create the Commission’s administrative remedial procedures mentioned by appellants and the State are found in Md.Ann.Code, art. 28, § 2-112 (1983 Repl.Vol.).

The Commission is required to create a Merit System Board to prepare and recommend comprehensive rules and regulations governing the operation of the Merit System for Commission employees. Section 2-112(a)-(c). Pursuant to this statutory mandate, the Commission adopted in 1976 Merit System Rules & Regulations. Chapter 1700 of those Rules governs Adverse Actions, Grievances and Complaints.

Section 1730 provides that any Commission employee “who feels aggrieved for matters relating to his/her job, pay, working conditions, or treatment ... should utilize the Commission Practice, Administrative Grievance Procedure.” Chapter 1740 provides that any Commission employee who has a complaint alleging discrimination based on “race, sex, religion, national origin, color, age, or any other non-merit factor may file a complaint of alleged discrimination using the procedures outlined in the Affirmative Action Plan.” The Court of Appeals has stated on numerous occasions that a party must seek redress under statutory procedures established by the Legislature prior to invoking the ordinary general jurisdiction of the courts. Prince George’s County v. Blumberg, 288 Md. 275, 283-84 , 418 A.2d 1155 (1980) (and cases cited therein), cert. denied, 449 U.S. 1083 , 101 S.Ct. 869 , 66 L.Ed.2d 808 (1981). Reasons cited for this requirement include: (1) deference to the expertise of administrative agencies; (2) compliance with the Legislature’s view that certain claims can best be han ²⁹⁰ died initially by an administrative agency; and (3) abstention from deciding issues which may be resolved by the provided administrative remedy. Id., 288 Md. at 284 , 418 A.2d 1155 (citing Gingell v. County Commissioner, 249 Md. 374, 376-77 , 239 A.2d 903 (1968)).

There are, however, certain exceptions to the-exhaustion requirement, which include: 1. When the legislative body has indicated an intention that exhaustion of administrative remedies was not a precondition to the institution of normal judicial action. 2. when there is a direct attack, constitutional or otherwise, upon the power or authority (including whether it was validly enacted) of the legislative body to pass the legislation from which relief is sought, as contrasted with a constitutional or other type issue that goes to the application of a general statute to a particular situation. 3. when an agency requires a party to follow, in a manner and to a degree that is significant, an unauthorized procedure. 4. where the administrative agency cannot provide to any substantial degree a remedy. 5. when the object of, as well as the issues presented by, a judicial proceeding only tangentially or incidentally concern matters which the administrative agency was legislatively created to solve, and do not, in any meaningful way, call for or involve applications of its expertise. Id., 288 Md. at 284-85 , 418 A.2d 1155 (citations omitted). To this list of five, we shall add a sixth exception.

In Patsy v. Board of Regents of the State of Florida, 457 U.S. 496 , 102 S.Ct. 2557 , 73 L.Ed.2d 172 (1982), the Supreme Court expressly held that “exhaustion of State remedies should not be required as a prerequisite to bringing an action pursuant to § 1983.” Id. at 516, 102 S.Ct. at 2568 . The Court did not treat the issue as one of first impression. ²⁹¹ Rather, the Patsy decision was an affirmation of the principles set out in McNeese v. Board of Education, 373 U.S. 668, 671-72 , 83 S.Ct. 1433, 1435 , 10 L.Ed.2d 622 (1963). Speaking through Justice Douglas, the McNeese Court stated that “relief under [§ 1983] may not be defeated because relief was not first sought under state law which provided a remedy.” Id. at 671, 83 S.Ct. at 1435 . This is so because “[t]he federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Id.

(quoting Monroe v. Pape, 365 U.S. 167, 183 , 81 S.Ct. 473, 482 , 5 L.Ed.2d 492 (1961)). Several state courts have interpreted the holding in Patsy as permitting § 1983 actions in state courts prior to the exhaustion of state administrative remedies. Logan v. Southern Cal. Rapid Transit District, 136 Cal.App.3d 116, 124 , 185 Cal.Rptr. 878, 883 (1982); Jackson v. Inhabitants of Town of Searsport, 456 A.2d 852 , 857 n. 20 (Me.) (dicta), cert. denied, — U.S. —, 104 S.Ct. 95 , 78 L.Ed.2d 101 (1983); Stratos v. Dep’t of Public Welfare, 387 Mass. 312 , 439 N.E.2d 778, 783 (1982); Montalvo v. Consolidated Edison Company of New York, 92 A.D.2d 389 , 460 N.Y. S.2d 784, 793 (N.Y.1983); Broadway & 67th Street Corporation v. City of New York, 116 Misc.2d 217 , 455 N.Y.S.2d 347, 353 (N.Y.Sup.1983).

We agree with the reasoning of these cases and, therefore, hold that Crawford was not required to exhaust the administrative remedies provided by the Commission prior to instituting her § 1983 action in the Circuit Court for Prince George’s County. We now turn to the State’s argument regarding the exercise of jurisdiction by Maryland courts to hear actions brought under § 1983. In DeBleecker v. Montgomery County, 48 Md.App. 455 , 427 A.2d 1075 (1981), rev’d on other grounds, 292 Md. 498 , 438 A.2d 1348 (1982), we examined this issue and aligned Maryland with other states which hold that state courts have concurrent authority with federal courts to adjudicate civil rights actions brought ²⁹² pursuant to 42 U.S.C. § 1983 . 48 Md.App. at 458-59 , 427 A.2d 1075 . The State does not dispute this.

Instead, the State urges us to recognize that “a state court has discretion to decline to entertain a Federal cause of action if an otherwise ‘valid excuse’ [7] exists.” In other words, the State wishes us to declare that the State courts may refuse to hear actions such as those brought by Crawford. The short answer to the State’s argument is that the circuit court could properly exercise its discretion and entertain jurisdiction of Crawford’s § 1983 action. See, DeBleecker v. Montgomery County, supra.

II

Affirmative Action As of this date, the United States Supreme Court has handed down three decisions dealing with race-conscious affirmative action: Regents of the University of California v. Bakke, 438 U.S. 265 , 98 S.Ct. 2733 , 57 L.Ed.2d 750 (1978); United Steel Workers of America v. Weber, 443 U.S. 193 , 99 S.Ct. 2721 , 61 L.Ed.2d 480 (1979); Fullilove v. Klutznick, 448 U.S. 448 , 100 S.Ct. 2758 , 65 L.Ed.2d 902 (1980). None of these rulings has entirely resolved this paradoxical issue. Each case is restricted to an examination of a special program 8 and none addresses “the basic constitutional issue of the standard of review that should be employed to determine the compatability of a. benign classification with the equal protection guarantee.” Nowak, Rotunda & Young, Constitutional Law 665 (2d ed. 1983). One legal ²⁹³ scholar has observed, with respect to the Bakke opinions, that the Court’s “ambivalent posture” is a “wise and politic resolution to an exceedingly difficult societal problem.” P. Mishkin, The Uses of Ambivalence: Reflections on the Supreme Court and the Constitutionality of Affirmative Action, 131 U.Pa.L.Rev. 907, 929 (1983).

Despite the Supreme Court’s “ambivalent posture” in these three cases, we believe it is possible to extrapolate certain general precepts which apply to all affirmative action plans. Bakke teaches us, in part, that the Constitution forbids “preferring members of any one group for no reason other than race or ethnic origin,” 438 U.S. at 307 , 98 S.Ct. at 2757 (separate opinion by Powell, J.). In that case, it was also observed that: The difficulty of the issue presented — whether Government may use race-conscious programs to redress the continuing effects of past discrimination — and the mature consideration which each of our Brethren has brought to us have resulted in many opinions, no single one speaking for the Court. But this should not and must not mask the central meaning of today’s opinions: Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative or administrative bodies with competence to act in this area. 438 U.S. at 324-25 , 98 S.Ct. at 2765-66 (Brennan, White, Marshall & Blackmun, JJ. concurring in the judgment in part and dissenting in part).

Weber and Fullilove suggest that affirmative action plans which produce discrimination against non-minorities solely on the basis of race, sex or national origin are permissible where strict guidelines and safeguards are established and obeyed. Weber, 443 U.S. at 208-09 , 99 S.Ct. at 2729-30 ; Fullilove, 448 U.S. at 487-90 , 100 S.Ct. at 2779-80 . ²⁹⁴ In United Steel Workers of America v. Weber, supra, the High Court examined in the context of Title VII of the Civil Rights Act 9 an affirmative action plan which provided for a degree of racial preference. The United Steel Workers and Kaiser Aluminum Chemical Corporation had voluntarily entered into a collective bargaining agreement which contained, among other things, an affirmative action plan designed to eliminate racial imbalance in what was at the time an almost exclusively white craft-workforce. The plan reserved 50% of the openings in craft-training programs for black employees until the percentage of black craft-workers was commensurate with the percentage of blacks in the local labor force.

Weber, a white production worker, filed suit challenging the program after he was passed over for the training program in favor of a less senior black employee. . Weber alleged that the program had resulted in junior black employees receiving preference over similarly situated white employees in violation of Title VII. The Weber Court, speaking through Justice Brennan, held that Title VII did not forbid private employees and unions from “voluntarily agreeing upon bona fide affirmative action plans that accord racial preference in the manner and for the purpose provided” in the plan that was before the Court. 443 U.S. at 200 , 99 S.Ct. at 2726 . This particular plan did not run afoul of Title VII because of the temporary duration of the plan, the remedial purpose of breaking down the traditional patterns of racial segregation in job classifications, the voluntary nature of the plan, and the fact that the plan did not unnecessarily trammel the interests of white workers because the plan did not “create an absolute bar to the advancement of white employees [because] half of those trained in the program will be white.” Id. at 208-09 , 99 S.Ct. at 2729-30 . ²⁹⁵ While the Weber Court did not expressly state that strict adherence to the affirmative action plan was required, it follows