Pope-Payton v. Realty Management Services, Inc.

SALMON, Judge. Tanya Pope Payton (“Ms.Pope Payton”) was diagnosed with multiple sclerosis (“M.S.”) on October 6, 2000, while she was employed by Realty Management Services, Inc. (“RMS”). Approximately thirteen months after her diagnosis, Ms. Pope Payton filed suit against RMS in the Circuit Court for Prince George’s County alleging that RMS, in violation of section 2-222 of the Prince George’s County Code, discriminated against her in various ways because of her physical disability. RMS filed a motion to dismiss on the grounds that the appropriate venue was Montgomery County.

RMS contended that venue was governed by article 49B, sections 42(a) and (b), ³⁹⁵ of the Maryland Annotated Code (1957, 1998 RepLVol.), which read: § 42. Civil actions for discriminatory acts-Montgomery County, Prince George’s County, and Howard County. (a) Authorized-In Montgomery County, Prince George’s County, and Howard County, in accordance with this subtitle, a person who is subjected to an act of discrimination prohibited by the county code may bring and maintain a civil action against the person who committed the alleged discriminatory act for damages, injunctive relief, or other civil relief. (b) Limitations periods.-{1) An action under subsection (a) of this section shall be commenced in the circuit court for the county in which the alleged discrimination took place not later than 2 years after the occurrence of the alleged discriminatory act.

(Emphasis supplied.) The narrow question presented to us is whether the discrimination alleged in Ms. Pope Payton’s complaint “took place” in Prince George’s County. The answer to that question depends on the resolution of a subordinate issue, i.e., whether discrimination “takes place” only in the county where the decision to discriminate is made or whether discrimination may also take place in the county where the decision to discriminate was implemented. The matter was considered by a motions judge in the Circuit Court for Prince George’s County who ruled that the proper venue was Montgomery County; accordingly the case was transferred from Prince George’s County to Montgomery County. After filing a motion to alter or amend the judgment, which was denied, Ms. Pope Payton filed this timely appeal. 1 ³⁹⁶ I. ALLEGATIONS IN THE COMPLAINT In April 2000, Ms. Pope Payton was hired as a “leasing consultant” by a property management company known as Equity Management.

Her job was to lease apartments, review leases, and handle complaints by renters. She performed these duties at Jefferson Hall, an apartment complex located in Riverdale, Maryland, and at Cambridge Crossing (another apartment complex) located in New Carrollton, Maryland. Both Riverdale and New Carrollton are in Prince George’s County. RMS assumed control of some of the rental properties formerly managed by Equity Management on September 1, 2000.

Two of the properties taken over by RMS were Jefferson Hall and Cambridge Crossing. Ms. Pope Payton became an RMS employee on September 1. Approximately one month after Ms. Pope Payton commenced employment with RMS, she began to experience headaches, slurred speech, and difficulty in walking. She consulted her family doctor who, on October 6, 2000, diagnosed her as having M.S. Ms. Pope Payton was off from work for one month after that diagnosis was made.

She returned to work at Jefferson Hall on November 6, 2000. One day after her return to work, Jamie Russell, who was RMS’s general manager, asked Ms. Pope Payton to meet her at RMS’s main office in Bethesda and to “bring all her doctor’s notes” with her. The two met in Bethesda (Montgomery County), Maryland, on November 8, 2000. Ms. Russell told Ms. Pope Payton at that meeting that while the latter was out sick, RMS had decided to downsize its staff at both Jefferson Hall and Cambridge Crossing; as a consequence of that decision, Ms. Pope Payton’s position was being eliminated.

Ms. Russell, nevertheless, assured Ms. Pope Payton that she could still work for RMS at two other apartment buildings it managed in Prince George’s County, i.e., Shadyside Gardens in Suitland, or Kennebec House in Oxon Hill. Ms. Russell said she would give her the choice between those two work sites but that she wanted Ms. Pope Payton to make her choice within the next ³⁹⁷ two days. Ms. Russell also informed Ms. Pope Payton that she was expected to begin work at the apartment building she chose on Monday, November 18, 2000. The day after the meeting with Ms. Russell, Ms. Pope Payton called the assistant manager at Park Place (another residential apartment building managed by RMS) and was told that Park Place had an opening for a leasing consultant.

Because Park Place was in Bladensburg, Maryland, near Ms. Pope Payton’s home, this position was attractive to her. On Friday, November 10, 2000-the deadline for a decision set by Ms. Russell-Ms. Pope Payton sent a letter to Ms. Russell telling her that, because of her illness, coupled with the short notice, she could not decide where she wanted to work. Ms. Pope Payton wrote to Ms. Russell again on November 15, 2000; this time she requested accommodations for her handicap by allowing her to work at Jefferson Hall or Cambridge Crossing for 30 hours per week; she also demanded that RMS supply her with ergonomic equipment consisting of a high back chair with cushion, a footrest, a headset, and a glare screen filter for her computer. The director of human resources for RMS (the “Director”) wrote Ms. Pope Payton on November 16 and told her to report for work at Kennebec House on November 17 at 8:30 a.m.

Ms. Pope Payton did not report to work as directed; instead, on November 17, she wrote to the Director and asked once again to be allowed to work at Jefferson Hall or Cambridge Crossing. On December 4, 2000, Ms. Pope Payton’s attorney notified RMS that his client was willing to work full-time and was able to perform the essential job duties of a leasing consultant. The attorney also notified RMS that his client could work at Jefferson Hall, Cambridge Crossing, Park Place, “or anywhere else that his client could find transportation to and from work.” Ms. Pope Payton has not worked for RMS since November 8, 2000. According to her complaint, her physical handicap makes it necessary that she work close enough to her home so that she can “find transportation” to and from work.

Several ³⁹⁸ job sites managed by RMS were close enough to her home so that she could have found transportation and worked there. These sites were: Jefferson Hall and Eastdale Apartments (Riverdale); Cambridge Crossing and Lenox Court Apartments (New Carrollton); Park Place Towers (Bladensburg); Cypress Creek, Kings Park Plaza, Overlook Apartments, and Prince George’s Towers (Hyattsville). In addition to the allegation that she was constructively discharged by RMS by its failure to accommodate her disability, Ms. Pope Payton alleged that RMS never provided her with health insurance but, “upon information and belief,” provided health insurance to other non-handicapped employees. The complaint alleged that RMS engaged in several acts of discrimination that were prohibited by the Prince George’s County Code.

Ms. Pope Payton’s rights under the Code were alleged to have been violated as follows: By subjecting [her] to less favorable terms and conditions of employment based on her status as a person with a physical handicap.... By failing to reasonably accommodate [her] physical handicap by allowing her to work in her current position and location, or another location that she could reach.... By discharging [her] in response to her request for reasonable accommodation,....

II

DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER VENUE AND PLAINTIFF’S RESPONSE RMS’s motion to dismiss was filed pursuant to Maryland Rule 2-322(a). In the memorandum of law that accompanied the motion, RMS asserted that all the discriminatory decisions affecting [plaintiffs employment with RMS, the unlawful acts undertaken by RMS ³⁹⁹ employees, and the relevant meetings between [pjlaintiff and the regional general manager of RMS “occurred” at, or from RMS’[s] main office in Bethesda, Maryland. 2 According to RMS’s motion, the complaint alleged discrimination by virtue of the “adverse employment decisions” made by it. RMS argued that, even if Ms. Pope Payton suffered the effects of these adverse employment decisions in Prince George’s County, suit must nevertheless be brought in the county where the plaintiff alleges that the “discriminatory decisions were made.” 3 III. ANALYSIS Ms. Pope Payton interprets the “where the discrimination takes place” language contained in article 49B, section 42(b), to mean that venue is proper in the jurisdiction where the effects of the alleged discriminatory decision are felt, not where the decision to discriminate is made.

Prior to 1990, 4 Montgomery County, Prince George’s County, and Howard County each enacted county ordinances creat ⁴⁰⁰ ing a private cause of action for claims of employment discrimination arising in those counties. The Court of Appeals held in McCrory Corporation v. Fowler, 319 Md. 12 , 570 A.2d 834 (1990), that Montgomery County’s statute was “not within the power of Montgomery County to enact” because the creation of a private cause of action for employment discrimination had not been allowed by the General Assembly and the ordinance did not otherwise qualify as a “local” matter within the meaning of the Maryland Constitution. Id. at 24 , 570 A.2d 834 . In response to the McCrory decision, the General Assembly, in 1992, authorized the passage of the ordinance previously enacted by the Montgomery County Council.

See H.B. 722, 1992 Leg., 406th Sess. (Md.1992); see also Stanley Mazaroff, Maryland Employment Law, § 7.01, 466 (2d ed.2001). H.B. 722 .was codified in article 49B, section 42, which provided: (A) In accordance with this subtitle, a person who is subjected to an act of discrimination prohibited by the Montgomery County Code may bring and maintain a civil action against the person who committed the alleged discriminatory act for damages, injunctive relief, or other civil relief. (B) (1) An action under subsection (A) of this section shall be commenced in the Circuit Court for Montgomery County not later than 2 years after the occurrence of the alleged discriminatory act.

Md.Code Ann., Art. 49B, § 42 (1957, 1991 Repl.Vol. & Supp. 1992). The General Assembly, in 1993, expanded article 49B, sections 40 and 42, to include the laws (authorizing private lawsuits against employers who discriminate) previously enacted by the county councils in Prince George’s and Howard Counties. H.B. 330, 1993 Leg., 407th Sess. (Md.1993).

The 1993 amendment to article 49B, section 42(b)(1) deleted “Circuit Court for Montgomery County” and replaced it with the phrase “Circuit Court for the County in which the alleged discrimination took place.” No further amendments have ⁴⁰¹ since been made to the language of article 49B, section 42(b)(1). The phrase, “take place,” is defined as “to happen” or “occur.” The American Heritage College Dictionary 1383 (3d ed.1997). Both parties support their position concerning venue by referring us to federal cases interpreting the venue provision found in 42 U.S.C. § 2000e-5(f)(3), which reads: Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this title. Such an action may be brought in any judicial district in[: (i)J the State in ivhich the unlawful employment practice is alleged to have been committed, [ (ii)] in the judicial district in which the employment records relevant to such practice are maintained and administered, or [ (iii)] in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, [ (iv)] such an action may be brought within the judicial district in which the respondent has his principal office.

For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought. 5 (Emphasis added.) In our view, the place where the discriminatory acts “have been committed” would usually be the same place where the discriminatory act “took place” or where the act “occurred” or “happened.” Thus, cases interpreting the phrase “in any ⁴⁰² judicial district in the state in which the unlawful employment practice is alleged to have been committed” are useful. 6 In support of its contention that discrimination takes place where the alleged discriminatory decision is made, RMS refers us to three federal cases, i.e., (1) Hayes v. RCA Service Company, 546 F.Supp. 661 (D.D.C.1982); (2) Johnson v. Washington Gas Light Company, 89 F.Supp.2d 45 (D.D.C.2000); and (3) Gwin v. Reynolds & Reynolds Company, 2001 WL 775969 , 2001 U.S. Dist. LEXIS 9520 (N.D.Ill.2001). In Hayes v. RCA, the plaintiff, Hayes, filed suit in the District of Columbia alleging employment discrimination in violation of Title VII and 42 U.S.C. § 1981 . 546 F.Supp. at 662-63 . Hayes, an African American, was employed by the defendant in Hyattsville, Maryland.

Id. at 663. He alleged that (1) ... [he] was not promoted to a managerial position, even though less qualified white employees were advanced to such positions; (2) ... [he] was placed on involuntary leave of absence ... because of a physical handicap, while white employees with similar physical limitations were retained and given “light duty” positions; (3) ..., due to his race, [he] was assigned to work in high crime areas, denied training opportunities necessary for promotion, and denied a permanent assignment to the Hyattsville, Maryland shop; and (4) ... the defendants compensated black employees, including [him], at rates lower than comparable white employees. Id. Hayes’ employer took the position that venue in the District of Columbia was improper under Title VII.

Id. at 662. Noting ⁴⁰³ that 42 U.S.C. § 2000e—5(f)(3)(i) 7 provides for venue “in any judicial district ... in which the unlawful employment practice is alleged to have been committed,” Judge Sirica said: In the first of these situations, the proper district is the one where the alleged unlawful employment practice was committed. Therefore, the Court must look to the place where the decisions and actions concerning the employment practices occurred. In the present instance, the decisions which are said to have wrongfully denied the plaintiff promotions, light duty work, training opportunities and equal pay all took place in the defendant’s Hyattsville, Maryland service center.

While the plaintiff does complain of being assigned to routes located in the District of Columbia, the decision to assign those routes was made in Hyattsville, Maryland, at the service center. As such, this first situation does not provide a basis for finding proper venue as to the Title VII cause of action in the District of Columbia. Id. (emphasis added).

Judge Sirica ultimately ruled that the alternative grounds for venue set forth in 42 U.S.C. § 2000e-5(f)(3)(ii) and (iii) 8 were also inapplicable; as a consequence, he ruled the District of Columbia was not the proper venue. Accordingly, the case was transferred to Maryland. Hayes, 546 F.Supp. at 665-66 . The language used in Hayes is somewhat favorable to RMS in that proper venue is to be where “the decision and actions concerning the employer’s practices occurred.” It should be noted, however, that decisions and actions do not necessarily occur in the same venue.

See Cox v. National Football League, 1997 WL 619839 , 1997 U.S. Dist. LEXIS 15307 (N.D.Ill. Sept. 29, 1997). In any event, the Hayes case is factually distinguishable from the one at bar because in Hayes the forum chosen by the plaintiff-employee was not the place where he was exclusively employed or where all of the discriminatory decisions were implemented. ⁴⁰⁴ The plaintiff in Johnson v. Washington Gas filed suit in the District of Columbia alleging, inter alia, violation of “federal and state race discrimination” statutes. 89 F.Supp.2d at 45 .

The defendant sought to transfer venue to Virginia. Id. The plaintiff lived in Maryland and had worked in both Virginia and Maryland. Id.

Washington Gas Light Company was incorporated in the District of Columbia and had operations in the Washington metropolitan area. Id. Over the course of seventeen years the plaintiff applied for four positions within the Washington Gas Light Company but was unsuccessful due (allegedly) to his employer’s discrimination. Id. at 46 .

Judge Robertson denied the defendant’s motion to transfer venue, but in doing so noted that under 42 U.S.C. § 2000e-5(f) (3) (i) and (ii), 9 the District of Columbia court did not have venue. Id. at 46. Judge Robertson explained his reasoning in a footnote: Plaintiff contends that he was assigned to one of defendant’s District of Columbia locations in 1995 where “the discriminatory activities, retaliation, and reprisal which Plaintiff has complained, have taken place and continue to take place,” but the inquiry for this venue provision turns on where the allegedly discriminatory decision was made,.... The selections for the positions that plaintiff sought were made at the [Springfield Operations Center] in Springfield, VA.

Id. at 46 n. 3. As authority for that view, Judge Robertson relied on Judge Sirica’s opinion in Hayes, supra, and upon Milburn v. Stone, 10 1991 WL 7660 at ¹ (D.D.C. Jan.7, 1991). Id. ⁴⁰⁵ In Gwin v. Reynolds & Reynolds, the plaintiff sued the defendant in Illinois under Title