Shabazz v. Bob Evans Farms, Inc.

DEBORAH S. EYLER, J. In the Circuit Court for Prince George’s County, Wendy Shabazz filed a two-count complaint against Bob Evans Farms, Inc. (“Bob Evans”), and Brian Martin, an employee of Bob Evans, for employment discrimination based on race and ⁶¹⁰ for retaliation for opposing an unlawful employment practice. After a hotly contested six-day trial, a jury found Bob Evans not liable on both counts and found Martin not liable for discrimination but liable for retaliation. It awarded “0” in compensatory damages and $85,000 in punitive damages. A judgment was entered by the clerk in favor of Bob Evans and against Shabazz, for costs.

A separate judgment was entered by the clerk in favor of Shabazz and against Martin for $85,000 and costs. Martin filed a motion for judgment notwithstanding the verdict (“JNOV”), on the ground that the punitive damages award against him was not supported by a compensatory damages award. The court granted that motion. The court denied a post trial motion by Shabazz for “backpay” and to submit additional evidence on that issue.

Finally, the court denied Shabazz’s petition for attorney’s fees. In this appeal, Shabazz presents four questions for review, which we have reworded and reordered: I. Did the trial court err by denying her motion to revise the judgment against Martin to add Bob Evans, so they would be jointly and severally liable?

II

Did the trial court err by denying her motion for backpay and to submit additional evidence about back-pay?

III

Did the trial court err by granting Martin’s JNOV motion on the ground that punitive damages are not recoverable in Maryland unless actual damages have been awarded?

IV

Did the trial court err by denying her petition for attorney’s fees and costs? For the following reasons, we shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS Bob Evans is an Ohio corporation that owns and operates family restaurants throughout the United States, including one on Crain Highway in Bowie. ⁶¹¹ On March 13, 2000, Shabazz was hired by Bob Evans to work as a server in the Bowie restaurant. Shabazz is a black person who is African-American.

Soon after she started working at the Bowie restaurant, Martin was hired as its general manager. Martin is a black person who was born in Bermuda. Linda Hannah was the assistant manager of the Bowie restaurant at the relevant times. Hannah is white.

As a server, Shabazz was paid a modest hourly wage. She depended on tips to supplement her earnings. She worked primarily on the day shift. When Shabazz first was employed at the Bowie restaurant, the restaurant’s policy was that each server was assigned to a particular station of tables for an entire shift.

According to Shabazz, that policy enabled servers to develop regular customers, which in turn helped them increase their tips. According to Shabazz, she and other African-American employees at the Bowie restaurant heard Martin make derogatory racial remarks about African-Americans, criticizing their speech and calling African-American males “thugs” and names that are racial epithets. On March 3, 2001, the Bowie restaurant instituted a new station rotation policy, by which, during a given shift, servers were to move from station to station. A few weeks later, on March 16 or 17, 2001 (or perhaps on both — the record is not clear), Shabazz complained to Hannah that the station rotation policy was being implemented unfairly because white servers were not consistently being made to rotate stations but black servers were, and black servers were being moved to stations that were not desirable, and were being paired with black customers.

The next day, Hannah communicated Shabazz’s complaint about the station rotation policy to Martin. Martin reacted by firing Shabazz on March 18, ostensibly on the basis that a regular customer had complained about her. On March 20, 2001, Shabazz contacted Al Desiderio, the Area Director for Bob Evans, and protested her firing to him. The next day, Desiderio met with Shabazz and Martin.

Sha ⁶¹² bazz told Desiderio that she thought Martin had fired her in retaliation for her complaint about the station rotation policy. Desiderio announced at the meeting that Shabazz was being reinstated to her server position. In addition, he told Shabazz he would investigate her complaint about the station rotation policy. Shabazz returned to work on March 22, 2001.

A few days later, she called Desiderio and complained that her tables were being held open for extended periods, without customers being seated, which she thought was an act of retaliation by Martin. Desiderio investigated Shabazz’s new complaint and her earlier complaint about the station rotation policy. He concluded that there was no basis for either complaint. With respect to the station rotation policy, for example, his investigation showed that white and black servers all were being rotated and the stations were not assigned based on race.

According to Shabazz, over the next several months, Martin and his management staff, including Hannah, reduced her table assignments and deliberately did not assign her overtime, although it was available. Shabazz again complained to Desiderio, who on June 22, 2001, directed Martin to prepare an analysis of Shabazz’s sales and tips. On June 24, 2001, Martin completed a write-up in Shabazz’s employment file. The write-up reprimanded Shabazz for going above Martin’s head to complain to Desiderio, admonishing that “failure [to bring her issues of concern to Martin] will be considered as misconduct and will result in termination.” Yet, Bob Evans had an “open door” employee complaint policy that permitted Shabazz to take her complaints directly to Desiderio.

On June 28, 2001, Martin wrote a report that Shabazz contended did not accurately reflect the computer-generated data about her sales and tips. The report included a comment that Shabazz ought to be fired for making complaints. ⁶¹³ Accurate data about sales and tips in the Bowie restaurant did not reflect that there was any discriminatory practice with respect to seating arrangements. Furthermore, although Shabazz’s overtime assignments decreased, the Bowie store generally had cut back on overtime for servers as a cost-saving mechanism. On July 7, 2001, Martin blocked off Shabazz’s station to accommodate a party of 30 that was assigned to her.

In anticipation of the large party, Martin assigned Shabazz’s regular customers to other servers. Apparently, the party of 30 either never arrived or arrived late. Shabazz complained to Martin, who was sitting at a table with a customer, that this assignment unfairly deprived her of customers. According to Shabazz, Martin said he was “just sick of’ her complaining, and fired her, for “conduct unbecoming to a Bob Evans employee” (a violation of a company work rule).

As Shabazz was gathering her belongings to leave, Martin said, “Yeah, I got you now, I finally got you, I’ve got a customer complaint and it’s on you.” He showed her a customer complaint form that had been filled in by the person he had been sitting with. According to Martin, when Shabazz became angry over the customer seating assignment on July 7, she openly cursed in the restaurant and yelled at a long-time customer, who left the store in tears. In the meantime, on April 9, Shabazz had made a complaint about the station rotation policy to the United States Equal Employment Opportunity Commission (“EEOC”). On June 25, she amended her EEOC charge to include “retaliation regarding [her] EEOC charge.” On July 10, Shabazz filed an additional charge with the EEOC regarding her July 7 termination.

Shabazz received a “Notice of Right to Sue” from the EEOC on August 9, 2001. 1 ⁶¹⁴ On January 24, 2002, in the Circuit Court for Prince George’s County, Shabazz filed a two-count complaint against Bob Evans and Martin. In count I (“retaliation claim”), she alleged that the appellees had unlawfully retaliated against her on March 18, 2001, and again on July 7, 2001, by firing her for having made a complaint of discrimination on the basis of race, in violation of Md.Code (1957, 1998 RepLVol.), art. 49B, section 16(f), and section 2-185(a) of the Prince George’s County Code. In count II (“employment discrimination claim”), she alleged that the restaurant’s station rotation policy, as implemented, was an unlawful employment practice, because it discriminated against her with respect to her employment conditions and compensation, based on her race, in violation of Article 49B, section 16(a), and section 2-185(a) of the Prince George’s County Code. In both counts, Shabazz alleged that, as a proximate cause of the unlawful conduct, she had been damaged in an amount to be determined at trial, including, but not limited to, the following: backpay, bonuses, tips, pension contributions and benefits, insurance contributions and benefits, fringe benefits, expenses and interest, front pay, costs of litigation, attorneys [sic] fees, emotional distress, and all other forms of economic, compensatory and punitive damages.

Shabazz sought “economic damages, compensatory damages, and punitive damages to be determined at trial, plus attorneys’ fees, costs” and any other appropriate relief, and demanded a jury trial “for all issues proper to be so tried.” The case proceeded through discovery, with a final scheduled trial date of April 28, 2003. Shabazz added to her employment discrimination claim an allegation that Bob Evans and Martin had created a hostile work environment in which she was subjected to racial harassment. On January 14, 2003, Shabazz filed a 42-page pretrial statement. In section VI, entitled “Relief Sought,” she said: Wendy is seeking economic damages of $65,000, which includes the cost of treatment for her emotional injuries. ⁶¹⁵ Wendy is seeking compensatory damages of between $200,000 and $800,000 for pain and suffering; $190,000 in attorneys’ fees and expenses to date; and between $350,000 and $500,000 in punitive damages.

Shabazz did not make any mention about backpay or about any sort of equitable relief. She did not ask to have issues separately decided by the jury and the court. Trial commenced as scheduled and lasted for six days. Shabazz testified among other things that she was unemployed from July 7, 2001, until sometime in the beginning of August 2001.

She did not introduce any evidence of lost earnings during that period, however. At the close of the evidence, counsel for Shabazz informed the court that Shabazz was withdrawing her claim for economic damages, and was seeking compensatory damages solely for emotional pain and suffering. The court’s instructions addressed compensatory and punitive damages. At the outset of the punitive damages instruction, the court told the jurors, “Now, if you find for the plaintiff and award damages to compensate for the injuries suffered, you may go on to consider whether to make an award of punitive damages.” No exceptions were taken to the instructions, by any party.

There was no request for an instruction about nominal damages. The court prepared a special verdict sheet and submitted it to counsel for their input. Counsel agreed to certain changes, which were adopted. The verdict sheet in final form set forth six questions on liability: 1.

Do you find by a preponderance of the evidence that the Defendant, Bob Evans Farms, Inc., unlawfully discriminated against the Plaintiff because of her race? Yes-No- 2. Do you find by a preponderance of the evidence that the Defendant, Bob Evans Farms, Inc., subjected the Plaintiff to a hostile work environment because of unlawful racial harassment? Yes-No- ⁶¹⁶ 3.

Do you find by a preponderance of the evidence that the Defendant, Bob Evans Farms, Inc., unlawfully discharged the Plaintiff in retaliation for her complaint of discriminatory conduct? Yes-No- 4. Do you find by a preponderance of the evidence that the Defendant, Brian Martin, unlawfully discriminated against the Plaintiff because of her race? Yes-No- 5.

Do you find by a preponderance of the evidence that the Defendant, Brian Martin, subjected the Plaintiff to a hostile work environment because of unlawful racial harassment? Yes-No- 6. Do you find by a preponderance of the evidence that the Defendant, Brian Martin, unlawfully discharged the Plaintiff in retaliation for her complaint of discriminatory conduct? Yes-No- The verdict sheet directed the jurors that if they answered “yes” to any of the six questions they were to proceed; it then set forth two damages questions: 7.

What compensatory damages, if any, do you award the Plaintiff as a direct result of unlawful conduct on the part of the Defendants? 8. What punitive damages, if any, do you award the Plaintiff against the Defendants? Shabazz did not ask the court to include a nominal damage question on the verdict sheet. The jurors deliberated for about 4íé hours, after which they returned verdicts answering “no” to the first five questions on the special verdict form and “yes” to the sixth question.

Thus, they found Bob Evans and Martin each not liable on the employment discrimination claims; found Bob Evans not liable for retaliation; and found Martin liable for retaliation. ⁶¹⁷ Proceeding to the next question, the jurors awarded “0” in compensatory damages. Finally, they proceeded to the punitive damages question, and awarded “$85,000.” The last day of trial, and the day on which the verdicts were returned, was May 6, 2003. On May 13, the clerk entered judgments on the verdicts. As stated previously, a judgment was entered in favor of Bob Evans, and against Shabazz, for costs; and a separate judgment was entered in favor of Shabazz and against Martin, for $85,000 and costs.

Two days later, on May 15, Shabazz filed a petition for attorneys’ fees, under Article 49B, section 42(c). On May 23, 2003, ten days after the entry of judgment against him, Martin filed a motion for JNOV, arguing that the punitive damages award was without legal foundation because the jury did not award compensatory damages. Also on May 28, 17 days after the verdicts were returned, Shabazz filed a motion asking the court to order the appellees to pay “backpay” as a form of “make whole” equitable relief. She alleged that, from her termination date of July 7, 2001, until she gained other employment in early August 2001, she lost at least $323.68 in pay.

There had been no evidence introduced at trial to support that assertion, however. On May 28, 2003, Shabazz filed a motion to revise the judgment against Martin to reflect that Bob Evans was jointly and severally liable for the $85,000 punitive damages award, as Martin’s employer. The court scheduled a hearing on the motions for June 24, 2003. On June 6, 2003, Shabazz filed a motion for leave to submit evidence at the June 24 hearing to support her motion for “backpay.” Three days later, she filed an “evidentiary supplement” to her motion to revise judgment, consisting mostly of affidavits by her counsel.

The parties all filed oppositions to the motions of the others. On June 24, their counsel convened, as scheduled, and the court made an oral ruling from the bench. ⁶¹⁸ The court denied Shabazz’s motion for “backpay.” The court commented that Shabazz could have pressed her claim for economic l^ss before the jury, but made the intentional decision to withdraw it from consideration. The court denied Shabazz’s request to submit evidence about backpay, and did not allow her to proffer the evidence. As noted above, the court granted Martin’s motion for JNOV, on the ground that Maryland law does not permit recovery of punitive damages in the absence of a predicate award of compensatory damages.

The court issued an order, on June 80, 2003, denying Shabazz’s petition for attorneys’ fees. On July 8, 2003, the court issued an order granting Martin’s motion for JNOV and striking the $85,000 punitive damages award against him. That same day, the clerk entered a judgment in favor of Martin and against Shabazz for costs. The new judgment did not accurately reflect the court’s ruling, which was that Shabazz had prevailed on her retaliation claim against Martin but was not entitled to recover the damages awarded, as a matter of law.

A judgment properly reflecting that ruling would have been in favor of Shabazz, for costs. Shabazz filed a notice of appeal on July 15, 2003. That same day, she filed a motion to revise the judgment entered in favor of Martin, asserting that it should have been in her favor, for costs. She also filed a motion for reconsideration of the decision to grant Martin’s JNOV motion.

Finally, she filed a “proffer” of the evidence she had wanted to submit on the issue of backpay. The evidence consisted primarily of her own affidavit, in which she estimated that, from July 7 to the beginning of August 2001, she lost wages and tips totaling $1,173.68. The appellees filed oppositions to Shabazz’s motions. On July 24, 2003, the clerk issued an “amended judgment” granting judgment in favor of Shabazz and against Martin, for costs.

The clerk entered the judgment on the docket on August 22, 2003. ⁶¹⁹ On August 22, 2003, the court issued an order denying Shabazz’s motion to revise judgment, on the ground that the clerk already had entered an “amended judgment” accurately reflecting the court’s June 24 oral ruling; and denying Shabazz’s motion for reconsideration. Shabazz did not file a second notice of appeal. 2 DISCUSSION I. Shabazz contends the trial court erred by denying, implicitly, her motion to revise the judgment in Martin’s favor (which later was revised to be an amended judgment in her favor, against Martin, for costs) to include Bob Evans. Her argument is two-fold. First, Shabazz maintains that the damages questions posed to the jury on the special verdict form (questions 7 and 8) spoke of “Defendants,” in the plural; therefore, any damages ⁶²⁰ award should have been entered as judgments against both defendants.

As originally prepared by the court, the verdict sheet listed six liability questions, three for each defendant, and four damages questions, two for each defendant. Counsel for the appellees made two related suggestions for changing the verdict form. He suggested that the damages questions be condensed to two — so that the jurors would be asked to decide compensatory damages for “the Defendants,” as a unit, and also to decide punitive damages for “the Defendants,” as a unit. He further suggested that the six liability questions also be condensed, from six to three, so that each theory of liability would be decided for “the Defendants,” as a unit.

Counsel for Shabazz agreed to the first suggested change. Hence, the verdict sheet was amended to combine what originally were four damages questions into the two questions, numbers seven and eight on the final verdict sheet. Counsel for Shabazz would not agree, however, to the second suggested change, which would have combined questions one through six into three questions, each addressing a liability theory against “the Defendants.” Instead, he insisted that the six liability questions on the verdict sheet remain as drafted by the court. The court made the suggested change to the verdict form that both counsel agreed to, but did not make the suggested change that counsel for Shabazz objected to.

Counsel for both sides were asked by the court if they had any objection to the verdict sheet, in its final form, and neither did. Thus, as a consequence of Shabazz’s lawyer’s having prevailed in his position, the verdict sheet as submitted to the jurors directed them to separately decide the liability issues for each defendant but posed damages questions that referred to “the Defendants,” regardless of whether both defendants, or only one, had been found liable. The use of the word “the Defendants” in questions seven and eight did not concern liability. Liability was addressed, for each defendant separately, in the jurors’ answers to questions one through six. ⁶²¹ Second, Shabazz argues that counsel for Bob Evans stipulated that Martin was acting within the scope of his employment when he terminated her and, therefore, the jury’s finding that Martin was liable for retaliatory discharge meant that any judgment against Martin also should have been a judgment against Bob Evans, based on vicarious liability, as his employer.

This argument contradicts the position Shabazz took below about the revisions to the verdict form, and otherwise is not supported by the record. The record does not reflect that there was a stipulation of vicarious liability by counsel. To the contrary, the insistence by counsel for Shabazz that the verdict sheet call upon the jurors to decide the defendants’ liability separately, and not as a unit, was the opposite of such a stipulation. The language counsel for Shabazz sought to keep in the verdict form, and that was kept in the form at his demand, allowed the jurors to find liability on the part of Martin without finding liability, either vicarious or direct on the part of Bob Evans.

On appeal, Shabazz cannot now press a contrary position — that counsel had agreed that any finding of liability by Martin would result in a finding of vicarious liability by Bob Evans. If such an agreement had existed, counsel for Shabazz would not have taken the position he did about the verdict form. In addition, the court’s instructions to the jury, not objected to by either party, show that there was no such stipulation about vicarious liability. The court instructed the jurors on the factual issue of whether Martin was acting within the scope of his employment.

After stating, “each defendant is entitled to a fair and separate consideration of that defendant’s own defense,” which was “not to be affected by [the jurors’] decision with respect to the other defendant,]” the court further instructed that Bob Evans, as Martin’s employer, was “responsible for injuries or damages caused by acts of employees or agents if the acts causing the injuries or the damages were within the scope of the employment while Mr. Martin was acting as the employee of [Bob Evans] at the time [of] the acts ” complained about. (Emphasis added.) ⁶²² The jurors thus were to decide, as the finders of fact, whether Martin was acting within the scope of his employment when he committed an act of unlawful employment practice, if at all. If the jurors found that Martin was acting within the scope of his employment, then Martin and Bob Evans were responsible. If he was not, then only he was responsible.

It is clear from the findings in favor of Bob Evans in answer to the liability questions on the verdict sheet that the jurors resolved that factual issue against Shabazz. They found that Martin engaged in unlawful retaliation but Bob Evans did not, consistent with a factual finding that Martin was not acting within the scope of his employment when he committed the wrong. The verdict returned by the jurors on the form approved by counsel answered the three liability questions for Bob Evans in the negative. The jurors found that Bob Evans did not discriminate against Shabazz because of her race, did not subject her to a hostile work environment, and did not discharge her in retaliation for her complaint of discriminatory conduct.

The questions were broadly worded to cover all liability of Bob Evans, whether direct or vicarious. When the jurors found in Bob Evans’s favor on liability, the court properly entered judgment in Bob Evans’s favor. Shabazz’s motion to revise, seeking to have Bob Evans added to the judgment against Martin, and thus held liable when the jurors had found no liability against it, was contrary to the verdict and inconsistent with the judgment properly entered in favor of Bob Evans. Accordingly, the court correctly denied the motion to revise.

II

Shabazz contends the trial court erred as a matter of law by denying her motion for “backpay.” Relying on cases decided under Title YII of the federal Civil Rights Act of 1964, as amended, she argues that backpay is an equitable remedy and therefore properly was for the court, not the jury, to decide, upon the jury’s deciding the retaliation claim against Martin. Shabazz further asserts that, because it was the court’s task to ⁶²³ decide whether to award backpay, it was error for the court not to entertain the evidence she offered on that topic, at the June 24 hearing. As explained above, Shabazz brought this civil action in two counts, both pursuant to sections 42 of article 49B of the Maryland Code, and Section 2-185(a) of the Prince George’s County Code. An understanding of the state statutory anti-discrimination law scheme is necessary to our decision about the backpay issue.

Maryland’s state anti-discrimination laws are set forth in article 49B of the Code. They establish the Commission on Human Relations and set forth its jurisdiction with regard to discrimination in housing, public accommodations, and employment. Montgomery County v. Broadcast Equities, Inc., 360 Md. 438, 444 , 758 A.2d 995 (2000). Sections 14 through 18, entitled “Discrimination in Employment,” constitute the Maryland Fair Employment Practices Act (“FEPA”).

Section 16 prohibits discriminatory employment practices, including discharging a person from employment because of his race and retaliating against an employee who has made a complaint of unlawful discrimination. Art. 49B, § 16(a)(/), (f). The definitions that apply to the FEPA, which are set forth in section 15, define “employer” to mean “a person engaged in an industry or business who has fifteen or more employees ... and any agent of such a person[.]” Art. 49B, § 15(b). Unlike Title VII, article 49B does not create a general private cause of action in favor of victims of discrimination.

The administrative enforcement process created by article 49B is the exclusive means for adjudicating an alleged unlawful employment practice in violation of section 16. Md. Comm’n on Human Relations v. Downey Communications, Inc., 110 Md.App. 493, 542 , 678 A.2d 55 (1996). See also Chappell v. Southern Maryland Hosp., Inc., 320 Md. 483, 493 , 578 A.2d 766 (1990) (holding that the existence of statutory remedies for discharge of employees in retaliation for reporting allegedly illegal discrimination claims or reporting viola ⁶²⁴ tions of state and federal minimum wage law precluded tort claim for abusive discharge); Makovi v. Sherwin-Williams Co., 316 Md. 603, 626 , 561 A.2d 179 (1989) (holding that common-law tort for abusive discharge on basis of unlawful employment discrimination based on gender will not lie when there is a specific statutory procedure and remedy to redress such conduct). Cf.

Molesworth v. Brandon, 341 Md. 621, 636-37 , 672 A.2d 608 (1996) (holding that common-law action for wrongful discharge based on gender discrimination will lie if the statutory remedy is not otherwise available). The administrative enforcement remedy established by article 49B is set forth in sections 3, 4, 9A, and 10 through 12. Under these sections, the Commission has the power to receive complaints about alleged acts of discrimination (including unlawful employment practices), investigate, determine probable cause to support an allegation, make a complaint if there is probable cause and the alleged acts are not eliminated by agreement, and refer the matter for determination by a hearing officer, in a contested case hearing under the Administrative Procedure Act. State Comm’n on Human Relations v. Kaydon Ring & Seal, Inc., 149 Md.App. 666, 684-85 , 818 A.2d 259 (2003).

Section 11, entitled “Hearing,” provides at subsection (e) the relief the Commission is authorized to grant upon a finding by the hearing officer that the respondent engaged in a discriminatory act. If the respondent is charged with employment discrimination and is found to have engaged in an unlawful employment practice, the remedy may include, but is not limited to, reinstatement or hiring of employees, with or without backpay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief that is deemed appropriate. Art. 49B, § 11(e) (emphasis added). Thus, damages or other monetary relief may not be awarded, other than backpay, ⁶²⁵ when applicable.

Broadcast Equities, supra, 360 Md. at 445 , 758 A.2d 995 . The definition of “employer” in Title VII is virtually identical to the definition of that term in article 49B, section 15. “Employer” is “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person[.]” Title 42, section 2000e(b). 3 Likewise, the “backpay” language used in section 11(e) of article 49B is precisely the same as that used in the enforcement provision subchapter of Title VII, and that has been defined and interpreted by federal courts, in cases that are persuasive as to its meaning in our state statute. See Chappell, supra, 320 Md. at 494 , 578 A.2d 766 (applying federal cases interpreting Title VII in analyzing claims under Article 49B); Pope-Payton v. Realty Management Services, Inc., 149 Md.App. 393, 402 , 815 A.2d 919 (2003) (same). 4 “Backpay” is the salary the complainant employee would have received but for the unlawful discriminatory acts, minus his actual interim earnings or the amounts he would have worked had he diligently sought other work. See Art. 49B, § 11(e).

In a Title VII civil rights action, the court has broad discretion to grant equitable relief in order to make the injured person whole, that is, to place him in the position he would have been in absent the discriminatory actions. Franks v. Bowman Transportation Co., 424 U.S. 747, 763-64 , 96 S.Ct. 1251 , 47 L.Ed.2d 444 (1976). An award of backpay is one such ⁶²⁶ type of equitable relief. Hubbard v. E.P.A., 949 F.2d 453, 463 (D.C.Cir.1991).

It is a form of restitution, the purpose of which is to restore the victim to his or her rightful place in the economic system. U.S. v. Lee Way Motor Freight, Inc., 625 F.2d 918 , 949 (10th Cir.1979); Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir.1971). Although backpay is a form of monetary relief, it is equitable in nature and is not an award of damages. Curtis v. Loether, 415 U.S. 189, 197 , 94 S.Ct. 1005 , 39 L.Ed.2d 260 (1974).

Likewise, “backpay” under article 49B is restitutionary in nature. Beretta U.S.A Corp. v. Santos, 122 Md.App. 168, 191 , 712 A.2d 69 (1998), rev’d on other grounds, Prince George’s County v. Beretta USA Corp., 358 Md. 166 , 747 A.2d 647 (2000). Until 1991, the remedies available under Title VII were limited to backpay and other forms of injunctive relief, such as reinstatement. That year, Title VII was amended to permit recovery of compensatory and punitive damages as well. 42 U.S.C. § 1981a.

There has been no concomitant amendment to article 49B by the General Assembly. The relief available under the administrative procedures established in that statute does not include damages. Makovi, supra, 316 Md. at 625-26 , 561 A.2d 179 . In 1992, however, the General Assembly created, in section 42 of article 49B, a new cause of action in the circuit courts for violation of the local anti-discrimination laws of Montgomery County.

Edwards Systems Technology v. Corbin, 379 Md. 278, 292 , 841 A.2d 845 (2004). That section was amended in 1993 to include Prince George’s County and Howard County. Section 42, entitled “Civil actions for discriminatory acts,” provides, in subsection (a): 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. ⁶²⁷ It also provides, at subsection (c), that, in a civil action under section 42, “the court, in its discretion, may allow the prevailing party reasonable attorney’s fees, expert witness fees, and costs.” The Prince George’s County Code declares that “discriminatory practices” based on (among other things) race “are declared to be contrary to the public policy of the County.” § 2-185(a). The Code further describes these “prohibitions” as being “substantially similar, but not necessarily identical, to prohibitions in federal and State law.” § 2-185(c).

Shabazz’s backpay argument against Martin is as follows. In her private cause of action, under section 42 of article 49B and section 2-185(c) of the Prince George’s County Code, she was entitled to pursue backpay as a form of equitable relief; and because backpay is equitable relief, it was for the court, not the jury, to decide whether to award, once liability was found. Therefore, when she moved the court to order payment of backpay, after the jury returned its verdict against Martin, the court should have considered that request and permitted her to present additional evidence pertinent to it. Even if, in a judicial civil action under section 42 for violation of a county’s local anti-discrimination law, a plaintiff may seek equitable relief in the form of a “backpay” award, the trial court did not err in refusing to consider Shabazz’s claim against Martin for backpay.

As Shabazz herself argues, because the language in article 49B is patterned on Title VII, the cases interpreting the backpay remedy provision of Title VII are persuasive. See Chappell, supra, 320 Md. at 494 , 578 A.2d 766 ; Pope-Payton, supra, 149 Md.App. at 402, 815 A.2d 919 . The cases do not support her argument, however. In Title VII cases, federal courts have addressed whether, under the controlling statutory language, supervisory co-employees can be held liable for backpay.

As noted above, prior to the 1991 amendment to Title VII, backpay was the only form of monetary relief available. In 1982, the Ninth Circuit held that, because section 2000e(g) specifies that backpay awards are to be paid by the “employer,” individual defen ⁶²⁸ dants cannot be held liable for backpay. Padway v. Palches, 665 F.2d 965, 968 (9th Cir.1982). In Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir.1993), the Ninth Circuit reaffirmed its holding in Padway , rejecting an argument that the employer “and any agent of such a person” language in the definition of employer, in section 2000e(b), means that an individual who is an agent of the employer, such as a supervisor, can be held liable for backpay.

The court interpreted the “and any agent” language simply to incorporate the doctrine of respondeat superior. Id. at 587-88. Accord Johnson v. Northern Indiana Public Service Co., 844 F.Supp. 466, 469 (N.D.Ind.1994); Ajaz v. Continental Airlines, 156 F.R.D. 145, 148 (S.D.Tex.1994); Canada v. Boyd Group, Inc., 809 F.Supp. 771, 781 (D.Nev.1992). In Weiss v. Coca-Cola Bottling Co., 772 F.Supp. 407, 411 (N.D.Ill.1991), the court explained that the equitable relief then permitted under Title VII — reinstatement and backpay— is the type of relief that an employer would be expected to provide in order to “make whole” an injured employee, but is not the type of relief that an individual who is not an employer would be expected to provide.

See also Newsome v. County of Santa Fe, 922 F.Supp. 519, 523 (D.N.M.1996) (recognizing that backpay and reinstatement are “most naturally provided by employer-entities, rather than individuals”) (citation and internal quotation marks omitted). The Fifth Circuit has interpreted the “and any agent” definition of employer more liberally, to mean that a person is an employer if he or she serves in a supervisory position and exercises control over traditional employer functions such as hiring and firing; and therefore an individual defendant who was a supervising co-employee may be hable for backpay, but only in his or her official capacity. Harvey v. Blake, 913 F.2d 226, 227 (5th Cir.1990). Such a person may not be liable individually or personally.

Id. at 227-28 . See also Barger v. State of Kansas, 630 F.Supp. 88, 92 (D.Kan.1985) (holding that public official employees can be hable for backpay award in their official capacities, but cannot be held personally hable in ⁶²⁹ their individual capacities); Sims v. Montgomery Co. Comm’n, 544 F.Supp. 420, 427 (D.C.Ala.1982) (same). The Fourth Circuit’s view on this issue was somewhat unsettled until 1998. Originally, in 1989, it had held in Paroline v. Unisys Corp., 879 F.2d 100, 104