Shangri-La Ltd. Partnership v. Meade

MEREDITH, J. After a nursery school in Howard County denied a parent’s request that it abandon use of latex gloves to accommodate her allergy to latex, the parent filed suit in the Circuit Court for Howard County alleging that she had been discriminated against on account of her handicap. A jury found in her favor on the discrimination claim she asserted pursuant to the Howard County Human Rights Code (“HCHR Code”). The school argues that its motion for judgment, as well as its ¹³⁰ motion for judgment notwithstanding the verdict, should have been granted because the evidence was insufficient to enable a reasonable jury to find that the parent’s latex allergy imposed a substantial restriction upon a major life activity. We agree with the appellants that their motion for judgment notwithstanding the verdict should have been granted.

Accordingly, we shall reverse the judgment of the circuit court. Factual Background and Procedural History In 1997, Lisa Meade, the appellee, was diagnosed with a latex allergy. Health care workers often develop these allergies due to their frequent exposure to latex. The recommended treatment for a latex allergy is to avoid exposure to latex.

Exposure triggers an allergic reaction such as itchy skin, asthma symptoms, and, in extreme cases, respiratory arrest. There is also a cumulative effect caused by repeated exposures, such that each additional exposure can increase the patient’s sensitivity to latex. Latex is found in household products such as balloons and gloves. Powdered latex gloves are more dangerous for people allergic to latex than non-powdered gloves, because the powder picks up latex particles from the gloves and then travels through the air, where it can be breathed into the lungs.

In addition to direct exposure from touching latex products or breathing the powder from latex gloves, patients can experience secondary exposure from food or clothing that has come into contact with latex. Meade enrolled her older son, James, at the Children’s Manor Montessori School from 1994 to 1997. The school is owned by the appellants. Dr. Pradip K. Ghosh is the head administrator at the school.

While James attended Children’s Manor, Meade participated in activities at the school and talked to James’s teachers in his classroom. She did not have any allergic reactions as a result of latex exposure at the school during that time period. In 1999, however, when Meade enrolled her two-year-old son, Andrew, at Children’s Manor, she noticed that some of ¹³¹ the teachers were using powdered latex gloves when they changed the children’s diapers. Concerned about her possible exposure to latex, Meade asked the teachers to use the less dangerous non-powdered latex gloves, and asked her son’s teacher to use non-latex gloves, which Meade offered to provide.

Meade also spoke with Ghosh about her allergy in September of 1999, and asked him to switch to using non-powdered gloves throughout the school. Ghosh told her he would look into it. Meade followed up by asking her physician, Dr. Golden, to send Ghosh a letter explaining her allergy. Dr. Golden did so on September 3, 1999, and Ghosh admitted at trial that he had read the letter.

Meade also asked Dr. Voight, an occupational physician who worked for her employer, to call Ghosh. Meade testified that, while she was waiting for a response from Ghosh, she spent as little time as possible in the school. Meade said she “would have liked to have been more a part of ... my son’s pre-school experience ... [by] participating] in the activities .... and [meeting] with his teachers to learn about his progress.” But, because she did not want to expose herself to latex, she felt that she could not participate in Andrew’s school experience. Meade admitted, however, that she had never had an allergic reaction while at the school.

When Meade spoke to Ghosh about the issue again, he told her he would not switch to a different type of gloves. According to Meade, Ghosh did not want to be bothered with the issue. Ghosh claimed that he never explicitly refused to make the switch, although he admitted that he was reluctant to change suppliers. Ghosh did, however, tell his staff to stop using latex gloves when changing Andrew.

Ghosh also allowed Meade to pick Andrew up at the front desk rather than coming into the classroom, as the other parents were required to do. Not satisfied with these accommodations, Meade provided Ghosh with more information about her allergy in October 1999. She also met with him in November to discuss the issue. According to Ghosh, Meade was very angry and threat ¹³² ened to sue Mm when he told her that he did not consider her allergy a handicap.

Meade wrote Ghosh a letter on November 29, 1999, in a final attempt to persuade him to switch to non-latex gloves. In this last letter, she provided “information regarding [her] latex allergy and [her] rights under the law,” including information about the Americans with Disabilities Act. Due to the perceived threat of litigation and Meade’s health concerns, Ghosh invoked a provision in their contract that allowed him to “ask any pupil to withdraw, at any time, for any reason the administration feels provocation is sufficient.” By letter dated December 2, 1999, Ghosh asked her to withdraw Andrew from the school, and gave Meade one month to find alternative care for Andrew. Meade chose to remove Andrew from the school immediately, and eventually enrolled him at Bandereare at a higher cost.

The Bandereare facility had already discontinued use of powdered latex gloves to accommodate another child attending that school. After Andrew attended Bandereare for seven months, Meade withdrew him from that school and enrolled him at another facility. As a result of these events, Meade filed a complaint with the Howard County Office of Human Rights, alleging that she had been discriminated against in the provision of public accommodations on account of her handicap, namely, her latex allergy. The HCHR Code provides in Subtitle 2, Sec. 12.210 II: “It shall be unlawful if, because of discrimination [on account of handicap], an owner or operator (or his/her agent) of public accommodations denies any person any of the accommodations, advantages, facilities or privileges of such public accommodations.” The term “handicap” is defined in Sec. 12.201 IX to mean: With respect to an individual: (a) A physical or mental impairment which substantially limits one or more of the individual’s major life activities; or (b) A record of having such an impairment; or (c) Being regarded as having such an impairment.

The Howard County Office of Human Rights concluded that Meade had “established a prima facie case of disability accom ¹³³ modation[s] discrimination when she alleged that she has a disability which affects the major life activity of breathing.” The Office of Human Rights concluded that there was reasonable cause to believe that the school had failed to accommodate Meade’s disability. After the Office of Human Rights issued its finding of reasonable cause, Meade filed suit against Children’s Manor Montessori School in the Circuit Court for Howard County on April 26, 2001, contending that Ghosh had discriminated against her based on her latex allergy in violation of § 12.210 of the Howard County Human Rights Code. Meade also alleged that when Ghosh asked Andrew to withdraw from Children’s Manor he was retaliating against her for requesting an accommodation, in violation of § 12.213. The only defendant named in Meade’s original complaint was Children’s Manor Montessori School, but Meade later amended her complaint to add as defendants Shangrila Limited Partnership, which owns the school, and Shangrila Enterprises, Inc., which is Shangrila Limited Partnership’s general partner.

Ghosh is the administrative head of Children’s Manor, a limited partner in Shangrila Limited Partnership, and a shareholder in Shangrila Enterprises. It was not disputed that the defendants would be liable to Meade if Ghosh violated the HCHR Code provisions prohibiting discrimination on account of handicap. One of the contested issues at trial was whether Meade’s latex allergy constituted a handicap under the law. Throughout the jury trial, Meade’s counsel argued that her allergy was a handicap because the allergy substantially limited one of her major life activities, specifically, breathing.

At the close of all the evidence, the defendants moved for judgment, but the trial court deferred ruling on the motion until after the jury returned a verdict. The jury found in favor of Meade and awarded her $1,683 in economic damages, $5,000 in non-economic damages, and $22,800 in attorney’s fees. On February 23, 2006, the court delivered an oral opinion denying the defendants’ motion for judgment and their ¹³⁴ oral motion for judgment notwithstanding verdict (JNOV). Judgment was entered against each of the defendants in accordance with the jury’s verdict.

Defendants then filed a motion for a new trial, which was denied on August 15, 2006. The three defendants timely noted this appeal on September 14, 2006. Analysis Although appellants raised two questions in their brief, the first question is dispositive. Appellants’ question is whether the circuit court erred in denying the defendants’ motions for judgment and for JNOV.

Although the defendants originally made a motion for judgment at the close of all evidence, the trial court reserved ruling on that motion until after the jury had rendered its verdict. Maryland Rule 2-532(b) provides: “If the court reserves ruling on a motion for judgment made at the close of all the evidence, that motion becomes a motion for judgment notwithstanding the verdict if the verdict is against the moving party.” The standard of review for a ruling on a motion for JNOV is whether the trial court was legally correct. See, e.g., Shabazz v. Bob Evans Farms, Inc., 163 Md.App. 602, 643 , 881 A.2d 1212 (2005). The motion tests the sufficiency of the evidence, which we must view, along with “the reasonable inferences to be drawn from it[,] ... in the light most favorable to the party opposing the motion.” Impala Platinum Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 327 , 389 A.2d 887 (1978).

Section 12.210 of the HCHR Code makes it unlawful for any public accommodation to deny “any person any of the accommodations, advantages, facilities or privileges of such public accommodations” “because of discrimination.” Section 12.213 provides that “[i]t shall be unlawful for any person to: (a) Retaliate against another person ... because the person has (1) Lawfully opposed any act or failure to act that is in violation of this subtitle; or (2) In good faith, filed a complaint, testified, participated or assisted in any way in a proceeding pursuant to this subtitle.” The HCHR Code provides that the “[w]ords and phrases used in this subtitle shall have their ¹³⁵ usual meaning, except as defined below: ----” The terms “discrimination,” “public accommodation,” and “handicap” are all defined in the HCHR Code § 12.201. Most pertinent to the issue on appeal is the definition of “handicap” in Section 12.201, quoted above, which defines the term using language virtually identical to the definition of “disability” in the Americans -with Disabilities Act (“ADA”), 42 U.S.C. § 12101 , et seq. The ADA defines “disability” as follows in 42 U.S.C. § 12102 : “(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; [or] (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Because there is no significant difference between the definition of “handicap” under the HCHR Code and “disability” under the ADA, and because there is no case law interpreting the HCHR Code, both parties agreed that we should look to federal law interpreting the ADA for guidance. Cf.

Ridgely v. Montgomery County, 164 Md.App. 214, 232 , 883 A.2d 182 (looking to federal decisions interpreting the ADA for guidance in interpreting similar provisions in the Montgomery County Code), cert. denied, 390 Md. 286 , 888 A.2d 342 (2005). We agree that, because of the virtually identical language in the two definitions, the two statutes should be construed in the same manner. The Supreme Court has held that the determination of whether someone is “disabled,” as that term is used in the ADA, is a three part analysis: First, we consider whether [the condition] was a physical impairment. Second, we identify the life activity upon which respondent relies ... and determine whether it constitutes a major life activity under the ADA.

Third, tying the two statutory phrases together, we ask whether the impairment substantially limited the major life activity. Bragdon v. Abbott, 524 U.S. 624, 631 , 118 S.Ct. 2196 , 141 L.Ed.2d 540 (1998). As the Supreme Court stated in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 , 122 S.Ct. 681 , 151 L.Ed.2d 615 (2002): “Merely having an impairment ¹³⁶ does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity.” (Citation omitted).

And, “[t]o qualify as disabled, a claimant must further show that the limitation on the major life activity is ‘substantial!].’ 42 U.S.C. § 12102 (2)(A).” Id. Applying this three-step analysis to Meade’s case, the first question is whether her latex allergy constitutes an impairment, which the Equal Employment Opportunity Commission defines as a “physiological disorder, or condition ... affecting one or more of the following body systems: ... respiratory----” 29 C.F.R. § 1630.2 (h). There is little dispute that Meade’s allergy is a physical impairment. The more difficult questions are whether the impairment impinges upon activities that the law recognizes as major life activities, and whether any such impingement is great enough to be considered a “substantial limitation” upon those activities.

Throughout the trial and closing arguments of this case, Meade specifically claimed that breathing is the major life activity that is significantly impaired by her latex allergy, and that the restriction of her breathing is the reason she is protected as a person suffering from a handicap. It is clear that breathing qualifies as a major life activity. Sutton v. United Air Lines, Inc., 527 U.S. 471, 480 , 119 S.Ct. 2139 , 144 L.Ed.2d 450 (1999) (“ ‘[m]ajor [l]ife [activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.’ ”) (quoting 29 C.F.R. § 1630.2 (i)). Accord Watson v.