University of Maryland v. Boyd

FISCHER, Judge. The University of Maryland at Baltimore (University), appellant, appeals an order of the Circuit Court for Balti ³⁰⁶ more City affirming a decision of the Maryland Commission on Human Relations (Commission) Appeal Board. This case stems from a violation of the dress code for the University’s police officers. Donald Boyd, appellee, was employed as a police officer for the University.

For many years, a dress code has been in effect and has prohibited University police officers from wearing a beard. In May of 1983, Mr. Boyd, with a growth of beard, returned from two weeks leave. When Mr. Boyd returned, he was reprimanded for violating the grooming policy. Mr. Boyd explained that he had a medical reason for the growth of beard, and consequently, the University placed him on medical leave in order to document, evaluate, and treat the condition.

Mr. Boyd remained on medical and sick leave until July 20, 1983, when his leave balances were exhausted. Mr. Boyd, however, remained employed by the University until April 12, 1984. On May 25, 1983, Mr. Boyd filed a grievance under the University of Maryland classified employees’ grievance procedure. Mr. Boyd alleged that the University improperly forced him to use his accumulated sick leave and that the University should permit him to work unshaven.

The grievance was filed under Md.Educ.Code Ann. § 13-1A-03 (1983 Cum.Supp.) which provides for a five step administrative process. Mr. Boyd’s grievance was given de novo consideration at each step. The final step included a hearing before the Department of Personnel. This hearing was conducted on November 14, 1984 before a hearing officer selected by the Secretary of Personnel.

The issues addressed at the hearing concerned whether the University’s grooming policy was. a business necessity or whether the policy improperly discriminated against handicapped and black individuals. The Secretary of Personnel concluded, on June 13, 1985, that “because Mr. Boyd [had] not ... proven discrimination on the basis of handicap and/or race, his grievance must be denied.” On August 17, 1983, Mr. Boyd also filed a complaint with the Commission. On July 27, 1988, the Commission filed a ³⁰⁷ formal Statement of Charges alleging that the University had violated Md.Ann.Code, Art. 49B, § 16(a) and had discriminated against Mr. Boyd. Subsequently, the University filed a motion claiming that the charges should be dismissed because the previous hearing, before the Secretary of Personnel, barred any further proceedings on the issue.

On January 20, 1989, the Commission’s hearing examiner denied this motion. A hearing was held during several days in March and April of 1989, and the examiner issued, on June 29, 1990, an opinion finding that Mr. Boyd suffers from a skin condition known as pseudofolliculitis barbae (PFB) which predominantly affects black males. The examiner concluded that the University had discriminated against Mr. Boyd on the basis of race but not on the basis of a physical handicap. The hearing examiner provisionally awarded Mr. Boyd reinstatement and backpay in the amount of $22,591.

Both parties appealed the proposed decision of the hearing examiner. The Commission affirmed the hearing examiner’s conclusions regarding the issues of res judicata and race discrimination, but it reversed the hearing examiner’s conclusion that the University had not discriminated on the basis of a physical handicap. The University appealed this decision to the Circuit Court for Baltimore City, which affirmed, without opinion, the Commission's decision. The University now appeals the circuit court’s decision and asks us to answer the following questions: 1.

Do the principles of res judicata bar the Commission’s action against the University because the claims presented in this action are identical to claims adjudicated against Mr. Boyd in a prior proceeding before the Secretary of Personnel? 2. Does the University’s policy prohibiting beards have a disparate impact on African American employees when that policy was shown to have an adverse effect on one employee only and no one else in the University’s workforce? ³⁰⁸ 3. Does substantial evidence support the hearing examiner’s findings that Mr. Boyd’s condition was not a physical handicap and that it did not substantially limit any of his major life activities? 4. Is the award of backpay supported by substantial evidence when no evidence was introduced in the administrative proceedings showing what Mr. Boyd would have earned had he remained employed by the University?

I. First, the University avers that Mr. Boyd is barred by the doctrine of res judicata from submitting a complaint under Article 49B of the Annotated Code because the same issue was previously adjudicated under the University’s grievance procedure. The University claims, and we do not disagree, that in some situations, the Secretary of Personnel’s decisions are given res judicata effect. We do not agree, however, that the Secretary’s decision, which concluded that the University did not discriminate against Mr. Boyd, bars the adjudication of his complaint filed with the Commission. Res judicata generally precludes “the relitigation of matters that have been fully and fairly litigated and finally decided between the parties, by a tribunal of competent jurisdiction.” Murray Int’l Freight Corp. v. Graham, 315 Md. 543, 547 , 555 A.2d 502 (1989).

The Court of Appeals, in Murray Int’l, also explained that, under the doctrine of res judicata, an administrative agency decision is subject to the same treatment as the decision of a court. The University claims that the issue Mr. Boyd raised before the Commission is identical to the issue decided by the Secretary of Personnel — whether the “rule prohibiting the wearing [of] a beard by University Police officers [should] be upheld or should it be set aside because it is not a necessity of business and discriminates against the handicapped and Blacks.” Consequently, the University contends that Mr. Boyd’s complaint filed with the Commission is precluded by ³⁰⁹ the Secretary’s decision that the grooming policy is not discriminatory. In Cicala v. Disability Review Board, 288 Md. 254 , 418 A.2d 205 (1980), the Court of Appeals considered whether a quasi-judicial determination by an agency is binding upon another determination of apparently the same issue but which arises under a separate statute. In Cicala , a Prince George’s County police officer applied to the Disability Review Board for disability benefits.

The Board denied the officer the extra service-related benefits because it found that his disability was not service related. The police officer contended that the Board erred because it did not consider a finding of the Workers’ Compensation Commission that the injury was employment related. In effect, the police officer claimed that the doctrine of res judicata precluded the Board from making its own finding on the issue of whether his injury was service related. The Court of Appeals held that the Board was not precluded from issuing its own finding.

The Court of Appeals, in Cicala , set out the rationale for determining whether an administrative agency’s finding should be given res judicata effect by another agency deciding the «same issue under a different statute. The Court stated that res judicata did not usually apply in such situations and reasoned that “although the issues before the two administrative agencies may appear to be identical, generally they are not. This is so because different statutes have different legislative histories, purposes, scopes of coverage, language, standards, procedures, and policies which may dictate opposite results.” Cicala, 288 Md. at 265 , 418 A.2d 205 . The Court analyzed the relationship between the Disability Board Plan and the Worker’s Compensation Act.

The Court found that each statute has a different origin, scope of coverage, funding sources, and procedures. The Court especially focused on the differing procedural processes; the Worker’s Compensation Commission has power to subpoena witnesses and to conduct its own investigation, whereas the Disability Board has no ³¹⁰ power to subpoena and must rely on the written opinion of a committee before it can make its own determination. The Court stated, “[Tjhese seemingly minor procedural differences may have substantial impact because they may result in the presentation to the Commission and the Board of different facts upon which to base their respective decisions.” Cicala, 288 Md. at 266 , 418 A.2d 205 . The Court also focused on the fact that the Board's plan and the Commission’s act set out the issue, as to whether the injury was employment related, in differing language and terms.

Applying the Cicala rationale to Article 49B of the Annotated Code, which governs the Human Relations Commission, and to Section 13-1A-03 of the Educ. Article, which governs University employee grievance procedures, we conclude that the doctrine of res judicata does not bar the Commission from resolving a complaint filed under Art. 49B even though the Secretary of Personnel has previously resolved a § 13-1A-03 grievance involving the same matter. There are substantial differences in the policies and procedures surrounding Article 49B and § 13-1A-03. Section 13-1A-01 defines “grievances” under Subtitle 1A as between “a classified employee and his employer on a matter concerning discipline, alleged discrimination, promotion, assignment, or interpretation or application of University rules or departmental procedures over which the University management has control.” Article 49B covers a much broader scope and was enacted to protect the rights of all Maryland residents in three major areas — housing, employment, and public accommodations.

Section 5 governs unlawful discrimination in public accommodation; § 14 prohibits discrimination in employment practices; and § 19 prohibits discrimination in housing. Section 3 of Article 49B authorizes the Commission to “make surveys and studies concerning human relations, conditions and problems, and it may promote in every way possible the betterment of human relations.” The procedural processes employed under Article 49B and § 13-1A-03 also differ. Article 49B provides for “an elabo ³¹¹ rate scheme for investigation, findings of facts, negotiation toward voluntary settlement and an enforcement procedure including access to the courts if a final order is not complied with or if temporary injunctive relief is deemed appropriate by the Commission.” Dillon v. Great Atl. & Pac. Tea Co., 43 Md.App. 161, 164 , 403 A.2d 406 (1979) (quoting Atkins v. Westinghouse Broadcasting Co., Inc., Superior Court of Baltimore City, No. 11385 (1977, Docket, Folio 403, Kaplan, J.)).

The Commission is charged under Art. 49B, § 9 with conducting a preliminary investigation to determine the merits of the complaint. If the Commission members determine that the information is reliable, the members may issue the complaint in the name of the Commission. By contrast, the version of § 13-1A-03 in effect when Mr. Boyd filed his grievance, only provided for conferences between the employee and various levels of University management. After completing four steps of conferences, the aggrieved employee was then permitted to submit his grievance to the Secretary of Personnel.

The Secretary was authorized to hold a hearing but was not obligated to conduct an independent investigation to determine the merits of the claim. The relief provided under each statute is also different. The Secretary of Personnel under § 13-1A-03 has the power to award backpay to the employee. The Commission, meanwhile, is given broad powers, under § 11(e), to issue an order, based upon a written agreement with the employer, to eliminate discrimination, and to reinstate or hire with or without backpay limited to a two year period, and to award other equitable relief.

Consequently, the Commission’s order affects a much broader segment of society than the Secretary of Personnel’s award to the aggrieved University employee. Most notably, the University grievance procedure is in response to the University’s need to settle employee grievances. The Commission, however, is charged with overseeing all aspects of human relations for the residents of Maryland. For these reasons, we believe the two statutes are substantially different in policy, coverage ³¹² and procedures.

The Secretary of Personnel’s finding does not, therefore, have res judicata effect upon the Commission’s decision. In addition, Mr. Boyd contends that any res judicata effect of the grievance procedures was explicitly avoided under the version of Article 49B, § 7(b)(1) in effect when he filed his complaint. At that time, § 7(b)(1) provided, “[A] state employee making a complaint to the Commission concerning his state employment must first give notice by filing a grievance proceeding, if one is available to him.” Mr. Boyd argues that it would be illogical for the General Assembly to have required state employees to file a grievance initially with their employer if the outcome of the grievance had res judicata effect against Article 49B claims. We agree.

The purpose of the notice provision was to give the State an opportunity to resolve the matter so that the need for Commission action would be obviated. The procedural difficulties which arose from the statute's ambiguity, however, outweighed the judicial economy of the policy. In Md.-Nat’l Cap. P. & P. Comm’n v. Crawford, 307 Md. 1, 29 , 511 A.2d 1079 (1986), the Court of Appeals spoke of the procedural difficulties that arose from requirements similar to § 7(b)(1), “[I]f we were to construe the pertinent statutes ... to require that an employee ... invoke and exhaust every administrative scheme applicable to her grievance before bringing an independent judicial action authorized by statute, the burden upon such employee would be great.

Moreover, the task of coordinating different judicial review actions and the independent