(“EEOC”).29


Under federal statutes an


employee may file a civil action after the administrative claim has been pending for 180 days, unless it is disposed of by the agency prior to that time. Under Article 49B § 42, that time is reduced to forty-five days for Howard, Montgomery, and Prince George’s County; and under Article 49B § 43, sixty days for Baltimore County.30 Unless circumstances indicate oth-


erwise, the better practice is usually to withdraw the complaint from the ad- ministrative process in writing as soon as the forty-five days have run and to file in circuit court. There are several reasons for doing so: (1) little or no further process- ing is likely to occur in the administrative forum and (2) the statute of limitations continues to run while the administrative case is pending.


Statute of Limitations The impact of a pending administrative


claim on the statute of limitation differs for the state and federal remedies. As an initial matter, there are two limitation periods about which one must be aware: (1) the time in which one must file an administrative claim, and (2) the time in which an employee must initiate a civil suit. Because Maryland is a “deferral” state,


i.e., it has a state agency to handle admin- istrative complaints, federal law allows one to file an administrative complaint alleging violations of federal law up to 300 days from the date the discrimina- tion occurred.31


In Montgomery County, 29


The purpose of the administrative process is to allow for investigation and conciliation, but often little is done other than to take the complainant’s affidavit and solicit the employer’s response. Administrative files compiled by the EEOC are available under the Freedom of Information Act upon writ- ten request to the regional attorney where the charge was filed. This can provide useful information for pre-litigation evaluation and, later in the litigation process without resort to formal discovery. Be aware that knowledgeable defense lawyers will obtain the file and cross examine your client in detail about the contents of any statements made by or attributed to the client. On the other hand, this is not always the case in Maryland. See, e.g., Montgomery County Code § 27-7(e)(2); Howard County Code § 12.214.


30 Article 49B § 43(b)(2). 31


In non-deferral states, an individual alleging discrimination must file an administrative complaint within 180 days.


Winter 2007


employees have one year from the date of discrimination. In Prince George’s the time is reduced to 180 days. In Howard and Baltimore Counties, the time is speci- fied as six months.32 Under federal law, the limitations


period is tolled while the administrative process is pending. Under Maryland law, it is not. Under federal law, once a com- plaint is withdrawn or a right-to-sue letter is issued, the employee has ninety days to file in a United States district court. In Maryland, however, a civil cause of action must be filed within two years of the discriminatory event, whether or not a complaint is pending before an admin- istrative agency.33 In 2005, the Court of Special Appeals


held that the limitations period begins to run when an employee is given notice of an action, e.g., termination, and not the


32


Note that 180 days and six months can be different. For example, if discrimination oc- curs on November 30, six months thereafter is May 30, while 180 days thereafter is May 29.


33 Article 49B § 42(b)(1).


date on which the action actually occurs.34 Claimants who fail to file a civil action within the two-year statutory period may have their cases adjudicated administra- tively, in which case disposition by the local agency is subject to limited judicial review under the Maryland Administra- tive Procedures Act.35


34


Haas v. Lockheed Martin Corp., 887 A.2d 673 (Md. 2005). The Court of Appeals granted certiorari and has held argument, but no decision had been made when this article went to press.


35


Annotated Code of Maryland, State Govern- ment Article § 10-222(h): “In a proceeding under this section, the court may: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final deci- sion maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious.”


21st Annual Olender Awards


recognizing individuals whose public service has transformed American society


Backstage at the 21st Annual Olender Foundation Awards, Foundation President Jack Olender (right) with honorees Dean Katherine S. Broderick, recipient of the Hero in Law Award, and Martin Mendelsohn, recipient of the Advocate for Justice Award.


Trial Reporter 43


Photo credit: Jacques Benovil


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