Wallace H. Campbell & Co. v. Maryland Commission on Human Relations

HOTTEN, J. Austin Scarlett, who used a wheelchair and resided in one of Wallace H. Campbell & Company, Inc.’s (“the Campbell Company”) buildings, became frustrated with the Campbell Company’s lack of responsiveness to his concerns and sought to mediate those issues with the Campbell Company. The mediation was unsuccessful. Based on events arising from the mediation, Scarlett filed a complaint with the Maryland Commission on Human Relations (“the Commission”), alleging that the Campbell Company had discriminated against Scarlett by holding the mediation at a wheelchair inaccessible location. After an eventful history before an Administrative Law Judge and the Commission’s appeal board, this matter was heard by the Circuit Court for Baltimore City on the Campbell Company’s petition for judicial review.

On April 6, 2010, the circuit court affirmed the Commission’s final decision, which ordered the Campbell Company to pay $7,500 in damages and $5,000 as a civil penalty. On July 27, 2010, the circuit court granted the Commission’s petition for judicial enforcement and entered judgment against the Campbell ⁶⁵⁵ Company for $7,500 in damages and $5,000 as a civil penalty. The Campbell Company timely appealed both circuit court decisions, and we ordered that the appeals be consolidated. The Campbell Company presents the following questions for our review, which we quote: 1.

Does 49B § 22(a)(9)[ 1 J require that a reasonable accommodation be made where none has been requested? 2. Was the Campbell Company’s participation—as one of the two disputants—a “practice” or “service” within the ambit of 49B § 22(a)(9)? For the reasons discussed below, we conclude that Md.Code (1957, 2003 Repl.Vol.), Article 49B § 22(a)(9) requires a request before there can be a refusal to provide a reasonable accommodation, and, therefore, we do not reach the Campbell Company’s second question. FACTUAL AND LEGAL PROCEEDINGS Austin Scarlett lived in Greenhill Housing, a federally subsidized apartment complex in Baltimore City.

He suffered from several maladies, including hypertension, depression, morbid obesity, and diabetes, the last of which necessitated the amputation of his left leg above the knee. As a result, Scarlett used a motorized wheelchair for mobility, and the facilities at Greenhill Housing were fully accessible to him. 2 The Campbell Company managed Greenhill Housing, in addition to approximately 110 other apartment and condominium complexes. R. Bruce Campbell was the president, chair, and chief executive officer of the Campbell Company. Frank ⁶⁵⁶ Stromyer was a vice president of the Campbell Company and local site manager of Greenhill Housing.

Scarlett had several conflicts with his neighbors in Greenhill Housing, including an 80-year-old woman who lived directly above his apartment. Scarlett complained that the woman’s doors squeaked loudly, yet nothing was done to address the issue. Eventually, the issues with the woman upstairs escalated, and she refused to address the squeaky doors or allow Greenhill Housing into her apartment to repair them. She even resorted to slamming the doors in her apartment at night, knowing that it would disturb Scarlett.

Scarlett believed he was being discriminated against because he was in a wheelchair. Scarlett met with Stromyer on at least three occasions at Greenhill Housing to discuss Scarlett’s complaints. Stromyer met with the woman upstairs and sent her several letters, but the issues remained unresolved. Scarlett then contacted the Baltimore City Community Relations Commission (“BCCRC”) to mediate and resolve the dispute between Scarlett and Greenhill Housing.

BCCRC referred Scarlett’s case to Wanda M. Belle, who was a graduate student in negotiation and conflict management at the University of Baltimore and was interning at BCCRC as a volunteer mediator. Scarlett advised Belle that he preferred to conduct the mediation at Greenhill Housing because it was convenient for him. Belle sent a letter to Campbell, inviting him to mediate Scarlett’s complaints through BCCRC. Belle sent the letter to the Campbell Company’s office on Meridene Road, which was fully handicapped accessible.

The Campbell Company advised that Stromyer, but not Campbell, would mediate with Scarlett. Scarlett only wanted to mediate with Campbell. Campbell later agreed to attend the mediation if it were held at the Campbell Company’s new office at 6212 York Road (“the Campbell Building”) because the paperwork concerning Scarlett’s complaints was there and it was a more neutral location than Greenhill Housing. Belle informed Scarlett that Campbell agreed to mediate Scarlett’s noise and discrimina ⁶⁵⁷ tion complaints, and a meeting was scheduled for 5:30 p.m. on January 23, 2003 at the Campbell Building.

At no time during Belle’s communications with Campbell did she ascertain whether Campbell was aware that Scarlett used a wheelchair or that he wanted the mediation to take place at a handicapped accessible location. Several months before the mediation, Scarlett was among twenty-five to thirty Greenhill Housing tenants who attended a meeting held by Campbell at Greenhill Housing. Scarlett asked Campbell a question from several feet away, and Campbell responded to what he characterized to be a “good question.” In the month before the scheduled mediation, Scarlett sent Campbell between thirty and fifty e-mails, most of which were copies of e-mails Scarlett previously sent to Stromyer. Campbell received the e-mails and relayed them to Stromyer.

Scarlett had never been to the Campbell Building before the mediation, but based on his communications with Belle and Stromyer, he assumed that the building was wheelchair accessible. The Campbell Company moved into the Campbell Building about a month and a half before the scheduled mediation. The building had one wheelchair accessible restroom, but not a wheelchair accessible entrance. A few days before the mediation, Stromyer advised Campbell that Scarlett used a wheelchair, and Campbell decided that it was better to proceed with the mediation at the Campbell Building rather than postpone it.

Campbell thought that he, his son, and Stromyer would be able to help Scarlett into and out of the building. Scarlett arrived at the Campbell Building around 5:30 p.m. on January 23, 2003 by Maryland Transit Administration Mobility van. The driver advised that the building was not wheelchair accessible and offered to take Scarlett home after making a stop in nearby Towson. Scarlett had the driver drop him off and approached the steps to the building in his wheelchair.

Campbell, his son, and Stromyer hurried out of the building to assist Scarlett enter the building through the rear entrance, which had a three-inch step and a six-inch step. ⁶⁵⁸ Scarlett stood up, not asking for assistance, but when Campbell, his son, and Stromyer offered help, Scarlett did not object and hopped up the two steps to the entrance. Scarlett entered the building and stood against the wall with his arms outstretched to keep his balance. Campbell stood nearby. Campbell’s son and Stromyer carried the wheelchair up the steps, and Scarlett got back into it.

At the time, Scarlett weighed 335 pounds, and the motorized wheelchair weighed at least 100 pounds. Scarlett, Stromyer, Campbell, Belle, and the co-mediator went to the meeting room and participated in the mediation. The meeting lasted about two hours, but no agreement was reached. After the meeting, Scarlett asked to use the restroom.

Stromyer led Scarlett to the nearest restroom, but it was not wheelchair accessible. Scarlett’s wheelchair could not fit through the door, so he got out of his wheelchair and hopped into the restroom. Scarlett used the restroom while Stromyer held the door open. Stromyer was unaware of the existence of a wheelchair accessible restroom in the Campbell Building, and Scarlett did not ask whether there was a wheelchair accessible restroom in the building.

After using the restroom, Scarlett maneuvered his wheelchair to the exit, stood up, and was assisted by Campbell and Stromyer so they could bring the wheelchair down the steps. Scarlett hopped down the steps and held on to a car in the parking lot until Stromyer and Campbell brought the wheelchair to him. Scarlett did not complain about the means of entering and exiting the building, nor did he request special accommodations. Scarlett continued to express his concerns to the Campbell Company regarding noise and harassment at Greenhill Housing.

Scarlett communicated with representatives from the United States Department of Housing and Urban Development (“HUD”) and the Commission regarding his complaints with Greenhill Housing and the Campbell Company. On April 11, 2003, Scarlett filed a complaint with the Commission, alleging that the Campbell Company, Campbell, and Stromyer ⁶⁵⁹ had discriminated against him and required Mm to mediate at a wheelchair inaccessible location. Gregory Logan investigated the matter for the Commission. He visited the Campbell Building on September 30, 2003, at wMch time the entire building, including the entrances and the restrooms, was now wheelchair accessible.

The Campbell Company apparently modified the Campbell Building following the mediation. Campbell advised Logan that it was Belle’s idea to hold the mediation at the Campbell Building. Logan prepared a Written Finding of Probable Cause, concluding that the Campbell Company had discriminated against Scarlett on the basis of his disability, in violation of Article 49B. The Written Finding was issued on November 19, 2003 and sent to the parties.

Conciliation between the parties failed, and the Commission certified the matter for a public hearing. On August 1, 2005, the Commission filed a Statement of Charges with the Maryland Office of Administrative Hearings (“OAH”), naming the Campbell Company, Campbell, and Stromyer as respondents. 3 The Commission alleged that the respondents engaged in discriminatory housing practices in violation of Article 49B § 22(a) by failing to accommodate Scarlett’s disability and by discriminating against him because of his disability. The Commission sought compensatory damages for Scarlett in an unspecified amount. The Commission also requested that the respondents be ordered to pay a civil penalty of at least $10,000, in addition to costs and attorney’s fees, and be enjoined from any future discrimination against Scarlett based on his disability.

Administrative Law Judge James T. Murray (“ALJ Murray”) dismissed Scarlett’s claim for damages in a prehearing ruling concerning the respondents’ motion for partial summary judgment. On March 1,2006, ALJ Murray held a public hearing on the remaining claims. On December 14, 2006, ALJ Murray issued a “Recommended Decision,” in which he pro ⁶⁶⁰ posed that the charges be dismissed. 4 The Commission appealed ALJ Murray’s decisions to the Commission’s appeal board. On May 8, 2007, the appeal board heard oral argument at a hearing where the Commission and the respondents were represented by counsel.

In its August 23, 2007 order, the appeal board reversed both of ALJ Murray’s decisions and remanded to OAH for further proceedings. The appeal board found that the respondents violated Article 49B § 22(a)(9) by failing to make reasonable accommodations to afford a disabled person equal opportunity to use and enjoy a dwelling. On October 12, 2007, ALJ Murray held a second hearing and heard testimony concerning Scarlett’s visit to the Campbell Building on January 23, 2003. On February 11, 2008, ALJ Murray issued a “Recommended Decision on Remand,” in which he made findings of fact and concluded that the Campbell Company discriminated against Scarlett at the Campbell Building on January 23, 2003.

ALJ Murray recommended that the Commission order the Campbell Company to pay $3,500 to Scarlett for his embarrassment and humiliation as a result of the discrimination. ALJ Murray found that the violation warranted a civil penalty, but did not order a penalty because he applied an erroneous regulation rather than the governing statute. On March 10, 2008, the Commission noted an appeal of ALJ Murray’s most recent recommendation. The appeal board heard oral argument and issued a “Decision and Order” dated August 27, 2009.

In its order, the appeal board increased the damages amount from $3,500 to $7,500 because the original amount was “insufficient to compensate Mr. Scarlett for the ⁶⁶¹ significant humiliation and embarrassment he experienced as a result of [the Campbell Company’s] discriminatory conduct.” The appeal board also held that the Campbell Company’s “actions placed Mr. Scarlett’s well-being at risk,” so it ordered the Campbell Company to pay a civil penalty of $5,000 to “further a primary goal of civil penalties: to deter others from engaging in discriminatory practices.” 5 On September 28, 2009, the Campbell Company filed a petition for judicial review in the Circuit Court for Baltimore City, appealing the finding of liability and damages award in the Commission’s August 27, 2009 order. 6 On April 6, 2010, the circuit court held a hearing, after which it dismissed the Campbell Company’s petition and affirmed the Commission’s order. On February 24, 2010, while the Campbell Company’s petition was still pending, the Commission filed a petition for enforcement of the judgment in the Circuit Court for Baltimore City, and on July 27, 2010, the circuit court held a hearing on the Commission’s petition. The court granted the Commission’s petition and entered judgment against the Campbell Company. The Campbell Company timely appealed both circuit court decisions, and this Court consolidated the two appeals for review.

We will provide additional facts as needed for our discussion. STANDARD OF REVIEW “When reviewing the decision of an administrative agency, ... we review the agency’s decision directly, not the decision of the circuit court.” Comptroller of the Treasury v. ⁶⁶² Sci. Applications Int’l Corp., 405 Md. 185, 192 , 950 A.2d 766 (2008). Therefore, our evaluation “is not whether the circuit court erred, but rather whether the administrative agency erred.” Classics Chi, Inc. v. Comptroller of the Treasury, 189 Md.App. 695, 705 , 985 A.2d 593 (2010) (internal quotations omitted).

Our “role in reviewing an administrative agency adjudicatory decision is narrow” and “ ‘is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.’ ” Md. Aviation Admin. v. Noland, 386 Md. 556, 571 , 873 A.2d 1145 (2005) (quoting United Parcel v. People’s Counsel, 336 Md. 569, 576-77 , 650 A.2d 226 (1994)); see also S.G. § 10-222(h). A court “reviewing administrative decisions ... ‘shall apply the substantial evidence test to the final decisions of an administrative agency, but it must not itself make independent findings of fact or substitute its judgment for that of the agency.’ ” Md.-Nat’l Capital Park & Planning Comm’n v. Anderson, 395 Md. 172, 180-81 , 909 A.2d 694 (2006) (quoting Balt. Lutheran High Sch. Ass’n v. Emp’t Sec. Admin., 302 Md. 649, 662 , 490 A.2d 701 (1985)). “We must also review the agency’s decision in the light most favorable to the agency since decisions of administrative agencies are prima facie correct[ ] ... and carry with them the presumption of validity.” Bulluck v. Pelham Wood Apts., 283 Md. 505, 513 , 390 A.2d 1119 (1978) (internal citations and quotations omitted).

Moreover, “not only is it the province of the agency to resolve conflicting evidence, but where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences.” Id. (citing N.L.R.B. v. Nev. Consol. Copper Corp., 316 U.S. 105, 106-07 , 62 S.Ct. 960 , 86 L.Ed. 1305 (1942); Bd. of Cnty.

Comm’rs v. Levitt & Sons, Inc., 235 Md. 151, 159-60 , 200 A.2d 670 (1964); Snowden v. Mayor & City Council of Balt., 224 Md. 443, 448 , 168 A.2d 390 (1961)). We review questions of fact and mixed questions of law and fact with deference to the agency’s ⁶⁶³ decision and presume the decision to be valid. Charles Cnty. Dep’t of Soc.

Servs. v. Vann, 382 Md. 286, 296 , 855 A.2d 313 (2004); Bulkick, 283 Md. at 512-13 , 390 A.2d 1119 (Mixed questions of law and fact are where “the agency has correctly stated the law and its fact-finding is supported by the record, but the question is whether it has applied the law to the facts correctly.”). We review an agency’s decisions as to matters of law de novo for correctness. Classics Chi, 189 Md.App. at 706, 985 A.2d 593 (citing Schwartz v. Md. Dep’t of Natural Res., 385 Md. 534, 554 , 870 A.2d 168 (2005)). “Determining whether an agency’s ‘conclusions of law’ are correct is always, on judicial review, the court’s prerogative, although we ordinarily respect the agency’s expertise and give weight to its interpretation of a statute that it administers.” Christopher v. Montgomery Cnty. Dep’t of Health and Human Servs., 381 Md. 188, 198 , 849 A.2d 46 (2004) (citations omitted); see also Md. Aviation Admin., 386 Md. at 573 , 873 A.2d 1145 (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376 (1999)) (“ ‘Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency.

Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.’ ”), Nevertheless, “[[Interpretation of a statute is a question of law,” so we review the agency’s decision de novo. Md.-Nat’l Capital Park & Planning Comm’n, 395 Md. at 181 , 909 A.2d 694 (citing Salamon v. Progressive Classic Ins. Co., 379 Md. 301, 307 , 841 A.2d 858 (2004)). Accordingly, even though the circuit court did not review the Commission’s decision de novo as to potential errors of law, we will do so.

DISCUSSION The record reflects that Scarlett never asked the Campbell Company for any special accommodation. Neither Scarlett nor Belle requested a reasonable accommodation for Scarlett’s ⁶⁶⁴ wheelchair prior to the meeting at the Campbell Building. Scarlett never requested a special accommodation when he arrived at the Campbell Building and saw the lack of a handicapped accessible entrance. He did not ask whether there was a wheelchair accessible restroom, even after Stromyer, who was unaware of the existence of a handicapped accessible restroom in the Campbell Building, showed Scarlett to an inaccessible one.

Finally, Scarlett did not ask for an accommodation when he exited the Campbell Building. To establish that the Campbell Company was aware of Scarlett’s use of a wheelchair, the Commission points to the question-and-answer forum at Greenhill Housing, during which Campbell interacted with Scarlett, and Stromyer advising Campbell a few days prior to