Mass Transit Administration v. Maryland Commission on Human Relations

ALPERT, Judge. This case is somewhat peculiar in that the complainant, Vance Simms, successfully claimed that he was the victim of handicap discrimination despite the fact that he does not have the handicap that allegedly was the basis of the discrimination action. We explain. In March 1978, Vance Simms applied for a job as a bus operator with the Mass Transit Administration (“MTA”).

On May 9, 1978, the MTA required Mr. Simms to undergo a complete pre-employment medical examination. As a result of this examination, the MTA physician diagnosed Mr. Simms as hypertensive and his application for employment was rejected. 1 ⁷⁰⁶ . On June 26, 1978, Mr. Simms filed a verified complaint with the Maryland Commission on Human Relations (“MCHR” or “the 'Commission”) alleging that the MTA had discriminated against him by failing to hire him because of a physical handicap, hypertension. The Commission’s staff conducted an investigation and issued the results of its investigation on May 26, 1980.

A public hearing was held and the hearing examiner issued her Opinion and Provisional Order on December 4, 1981, in which she ruled that Respondent, MTA, had violated Article 49B by its failure to hire complainant, Mr. Simms, because of a physical handicap. 2 The Hearing Examiner denied the complainant back pay, however, on the ground that Article 49B could not be retroactively applied to provide monetary relief from a state agency. Appeals were taken from the Opinion and Provisional Order by the Commission and the respondent, and the Appeal Board affirmed the finding of a violation but entered an Order on April 11, 1983 in which it held that an award of back pay could be retroactively entered against a state agency. The case was remanded to the Hearing Examiner who held a hearing on June 2, 1983 and entered an Order on January 24, 1984 directing the respondent to pay to the Complainant the sum of $17,276.96 at 8% interest. The respondent noted an appeal from the hearing examiner’s Order on February 23, 1984, and filed its Statement of Issues on Appeal on March 19, 1984, which the Commission answered.

A Board of three Commissioners was assigned by the Chairman of the Commission to review the appeal and concluded, in June 1985, without hearing oral argument, that the findings of the Board could not be reversed because no evidence of fraud, surprise, mistake, inadvertence or change of law or fact was presented to support the ⁷⁰⁷ reversal. 3 In addition, the Board determined that the hearing examiner did not err when he failed to deduct all the complainant’s earnings during the two-year back pay period from the award, 4 and that the Hearing Examiner’s award of interest in conjunction with the back pay award was proper in order to make the complainant whole. 5 The MTA then noted an appeal from the actions of the MCHR to the Circuit Court for Baltimore City. On December 18, 1985, argument was heard and the court affirmed the MCHR decision with respect to its findings of fact. The court, however, modified the relief which the MCHR included in its Order of April 11, 1985, to the extent that Mr. Simms be promptly tested to determine whether he fulfilled all the requirements for the position. The court also struck the MCHR’s remedy directed to unlawful discrimination against persons who were physically handicapped because the complainant, Mr. Simms, did not fall within that category.

Other remedies were not altered. The MTA then noted its appeal to this court and raised the following issues: I. Whether the Commission had jurisdiction to hear the complainant’s case.

II

Whether the complainant established a prima facie case for handicap discrimination. ⁷⁰⁸ III. Whether the MTA discriminated against the complainant on the basis of a physical handicap or a perceived physical handicap.

IV

Whether the MTA was under a duty to “accommodate” the complainant’s high blood pressure. V. Whether the doctrine of sovereign immunity precludes the imposition of a back-pay award against the MTA.

VI

Whether the court erred in awarding prejudgment interest.

VII

Whether the Commission failed to “endeavor to eliminate the discrimination by conference, conciliation, and persuasion” as mandated by Maryland Code Art. 49B, § 19(b). The MCHR, appellee/cross-appellant, raises only two issues: I. Whether the circuit court exceeded its statutory authority and usurped the administrative function of the Commission when it modified the order to hire the complainant by instead ordering him to undergo a complete physical examination to determine his eligibility for hire.

II

Whether the circuit court erred when it modified the Commission’s order to cease and desist from discriminating on the basis of physical handicap. As we believe that the MTA’s blood pressure requirement was a bona fide occupational qualification and the complainant’s application was rejected because of a perception that the complainant did not meet the physical qualification for the job, we hold that the complainant was not the victim of handicap discrimination and reverse the learned trial judge. The complainant was either not handicapped at all and could, therefore, not avail himself of the handicap discrimination law or his rejection based on his actual or perceived “handicap” of high blood pressure was lawful and not discriminatory because he failed to satisfy the requirements ⁷⁰⁹ for the job. Therefore, we need only address the material presented in the first three issues.

I. The Commission’s Jurisdiction Appellant’s first argument is that the complainant, Mr. Simms, did not suffer from a handicap within the meaning of article 49B and so the Commission was without jurisdiction to hear the complaint. The crux of the MTA’s argument is that although high blood pressure may be a disease or disability, it is not a handicap within the meaning of the act. Accordingly, the MTA could not have discriminated against the complainant on the basis of a handicap as he was not “handicapped” in the article 49B sense of the term. In the case at bar, the Commission expressly found as a matter of fact that “Vance Simms is a proper complainant as a person claiming to be aggrieved by alleged discrimination within the meaning of Article 49B____” 6 All parties, the Commission, and the circuit court appear to have assumed that hypertension is a physical handicap within the meaning of the employment discrimination statute. 7 Moreover, in its brief, appellant points to no authorities to contradict the Commission’s determination that hypertension is an ailment which fits within the statutory definition of physical handicap.

The Maryland Code defines the term physical or mental handicap quite broadly: Physical or mental handicap—The term “physical or mental handicap” means any physical disability, infirmity, malformation or disfigurement which is caused ⁷¹⁰ by bodily injury, birth defect, or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impairment, muteness or speech impediment or physical reliance on a seeing eye dog, wheelchair, or other remedial appliance or device; and any mental impairment or deficiency as, but not limited to, retardation or such other which may have necessitated remedial or special education and related services. Md.Ann.Code art. 49B § 15(g) (1979) (emphasis added). The handicapped discrimination guidelines reflect this broad definition of the term handicapped by including within the definition individuals who are regarded as having a handicap or who have a past history or record of having a handicap, as well as those who are actually handicapped. 8 COMAR 14.03.03.03 (July 27, 1979). At least two states have determined that hypertension is a handicap within the meaning of their employment discrimination laws.

American National Insurance Company v. Fair Employment and Housing Commission, 186 Cal.Rptr. 345 , 32 Cal.3d 603 , 651 P.2d 1151 (1982); Lipton v. Appeal Board, 30 Fair Empl.Prac.Laws (BNA) 400 (N.Y.Sup.Ct.1979); Arn ot Ogden Memorial Hospital v. New York State Division of Human Rights, 67 A.D.2d 543 , 416 N.Y.S.2d 372 (1979). The reasoning found in American National Insurance Company, supra, is instructive. In that case, the California court was asked to consider whether high blood pressure was a handicap or a medical condition. The court determined that the distinction could not be made as a general principle. “Common knowledge is ... high blood pressure is physical, and often it is handicapping.” 186 Cal.Rptr. at 350 , 651 P.2d at 1155 .

Therefore, it would be necessary to analyze each case separately to determine ⁷¹¹ whether the severity of the condition elevated it to the status of a handicap. Id. A bright line rule cannot be drawn. We agree with the logic in American National Insurance Company .

It would be imprudent for this court to determine that high blood pressure is always or could never be a handicap. Since we believe that hypertension could be a handicap, we conclude that the Commission had jurisdiction to hear the complainant’s case. The Commission has jurisdiction over all employment discrimination cases including those alleging physical handicap. Md.Ann.Code art. 49B, § 16(a)(1) (1979).

The handicap alleged in this case was hypertension, a disability which is both physical and potentially handicapping. Complainant alleged that he was discriminated against because the MTA perceived him as an individual suffering from the handicap of hypertension. The Commission did not exceed its jurisdiction in accepting the case and did not err in determining that hypertension may be a physical handicap. II. and III.

Handicap—-Was it Established? Appellant next contends that although the complainant, Mr. Simms, may have met the jurisdictional prerequisites to establish a claim, he failed to establish that he had a physical handicap within the meaning of Art. 49B, § 15(g) at the time of his disqualification and that he has, therefore, failed to establish a prima facie case for handicap discrimination. In B & O Railroad v. Bowen, 60 Md.App. 299 , 482 A.2d 921 (1984), we held the burden of establishing a prima facie case of handicap discrimination rests on the complainant. Once the complainant establishes that he was physically able to perform the duties of the job sought and that his rejection was solely on the basis of his handicap (or perceived handicap), the burden of persuasion shifts to the employer to show to a reasonable probability that the complainant’s physical handicap would create a future haz ⁷¹² ard to the health and safety of either the applicant or the public at large.

Id. at 309 , 482 A.2d 921 . In the instant case, the complainant alleged that he was not hired because his blood pressure exceeded the maximum allowed by the MTA. His claim for relief was based on the assertion that failure to hire solely for this reason was handicap discrimination—or at least discrimination on the basis of a perceived handicap. The complainant, accordingly, put forth evidence from his personal physician as well as a physician from the American Heart Association to show that he did not suffer from hypertension.

Thus, he introduced evidence that although his blood pressure was conceded to be above the MTA standards, it was within the high range of normal and would not be considered “hypertensive.” In short, he demonstrated that he could perform the job without posing a threat to public health because he did not suffer from a disability or handicap. Moreover, the complainant additionally put forth evidence that the medical methods used by the MTA physician were inadequate to make a determination that his blood pressure was high. To wit, at least, a second blood pressure reading should have been made at least fifteen minutes after the first, and at best a series of readings should have been made over the next few days. Having put forth evidence that he would be able to perform the job in spite of his “high” blood pressure, the burden of persuasion shifted to the MTA to show that the complainant’s disqualifying condition could likely pose a hazard to the public.

The Maryland statute governing discriminatory practices in the workplace states that: It shall be an unlawful employment practice for an em: ployer ... 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 ⁷¹³ physical or mental handicap unrelated in nature and extent so as to reasonably preclude the performance of the employment. Md.Ann.Code art. 49B, § 16(a)(l)(1979) (emphasis added). It is, therefore, a valid defense to a discrimination allegation that the “handicap” (or disability) in question will interfere with the complainant’s ability to perform the work adequately; in other words, that the job qualification is a bona fide occupational qualification.

See COMAR 14.03.02.-06(f)(2) (1979). In this regard, the MTA presented evidence that its standard of 140/90 as the maximum allowable blood pressure is a commonly accepted one in the medical community as appropriate for jobs comparable to that of a city bus driver. Hypertension is a disease which can have longterm effects on body organs and which can cause fainting, dizziness, drowsiness as well as create visual disturbances—all side effects which pose a life threatening danger to the public if suffered by a city bus driver. In this case, the MTA refused to hire the complainant because the result of his medical examination indicated that Mr. Simms’ blood pressure was higher than the